00001 1 IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR 2 PALM BEACH COUNTY , FLORIDA 3 CASE NO.: 502012CP004391XXXXSB 4 5 6 IN RE: 7 ESTATE OF SIMON L. BERNSTEIN, 8 Deceased. ____________________________________ 9 ELIOT IVAN BERNSTEIN, PRO SE 10 11 Petitioner(s), 12 vs. 13 TESCHER & SPALLINA, P.A., (and all 14 parties associated and of counsel); ROBERT L. SPALLINA (both personally 15 and professionally); DONALD R. TESCHER (both personally and professionally); 16 THEODORE STUART BERNSTEIN (as alleged personal representative, trustee, successor 17 trustee) (both personally and professionally); et al., 18 19 Respondent(s). _________________________________/ 20 21 TRANSCRIPT OF PROCEEDINGS BEFORE 22 HONORABLE MARTIN COLIN 23 24 DATE: July 11, 2014 25 TIME: 1:35 p.m. - 4:22 p.m. 00002 1 APPEARING ON BEHALF OF WILLIAM E. STANSBURY: 2 PETER M. FEAMAN, P.A. 3615 W. BOYNTON BEACH BOULEVARD 3 BOYNTON BEACH, FL 33436 By: PETER M. FEAMAN, ESQ. 4 JEFFREY ROYER, ESQ. 5 APPEARING ON BEHALF OF TED BERNSTEIN: 6 PAGE, MRACHEK, FITZGERALD ROSE KONOPKA & DOW, P.A. 7 505 SOUTH FLAGLER DRIVE, SUITE 600 WEST PALM BEACH, FL 33401 8 By: ALAN B. ROSE, ESQ. 9 JOHN J. PANKAUSKI, ESQ. PANKAUSKI LAW FIRM, PLLC 10 120 South Olive Avenue, Suite 701 West Palm Beach, Florida 3340 11 MATWICZYK & BROWN 12 625 N. FLALGER DRIVE, SUITE 401 WEST PALM BEACH, FL 33401 13 By: BENJAMIN P. BROWN, ESQ. (CURATOR) 14 JOHN P. MORRISSEY, ESQ. 330 CLEMATIS STREET, SUITE 213 15 WEST PALM BEACH, FL 33401 16 ELIOT I. BERNSTEIN, Pro se 17 ALSO PRESENT: CANDICE BERNSTEIN 18 19 BE IT REMEMBERED, that the following 20 proceedings were taken in the above-styled cause before 21 the Honorable MARTIN COLIN, at the Palm Beach County 22 Courthouse, 200 West Atlantic Avenue, Room 8, in the City 23 of Delray Beach, County of Palm Beach, State of Florida, 24 on July 11, 2014, to wit: 25 00003 1 I N D E X 2 3 WITNESS EXAMINATION PAGE 4 ALAN B. ROSE, ESQ. 5 Direct by Mr. Bernstein 13 6 Cross by Mr. Pankauski 30 7 ELIOT BERNSTEIN 8 Direct by Mr. Bernstein 78 9 Cross by Mr. Rose 84 10 ALAN B. ROSE, ESQ. 11 Direct by Mr. Bernstein 88 12 TED BERNSTEIN 13 Direct by Mr. Bernstein 91, 96 14 Cross by Mr. Rose 94 15 16 17 18 19 20 21 22 23 24 25 00004 1 P-R-O-C-E-E-D-I-N-G-S 2 - - - - 3 THE COURT: Okay. Thanks. Be seated. 4 All right. We're on the estate of Simon 5 Bernstein, 2012CP004391. We have a number of 6 people here. After everyone makes their 7 appearances, I'm going to have some preliminary 8 instructions, and then we'll start the 9 hearings. 10 So counsel, and then pro se's, make your 11 appearances. Start that side. 12 MR. PANKAUSKI: Good afternoon, Your Honor, 13 John Pankauski on behalf of Ted Bernstein. 14 MR. ROSE: Alan Rose on behalf of Ted 15 Bernstein. 16 MR. MORRISSEY: John Morrissey here on behalf 17 of Molly Simon, Alexander Bernstein, Eric 18 Bernstein and Michael Bernstein. 19 MR. BROWN: Ben Brown, as curator of the 20 estate. 21 MR. FEAMAN: Peter Feaman and Jeff Royer here 22 on behalf of William Stansbury. 23 MR. ELIOT BERNSTEIN: Eliot Bernstein, pro 24 se. 25 THE COURT: Okay. All right. So last time 00005 1 we were here we went through a list of what we're 2 going to hear today. I think it's probably well 3 known, we're going to start with the motion to 4 disqualify counsel. Here are the following rules. 5 And I'm setting these rules, and these rules will 6 be enforced, because it seemed apparent from the 7 other times you folks were before me, especially 8 on UMC's, which are not structured, and are not 9 evidentiary hearings, that it, at times, got to be 10 a little bit of a free-for-all; people just spoke 11 when they wanted to speak, and they raised matters 12 that were not set for hearing. That has come to 13 an end. If any one of you violates what I say 14 now, I'm going to stop the hearing at the moment I 15 sense a violation, and, hopefully, it's not going 16 to be the case, and then I'm going to deal with 17 the violation right on the spot. So here are the 18 rules: One, the rules of evidence apply to this 19 hearing. If you don't know the rules of evidence, 20 that's too bad. But you have to know them. Okay. 21 If something is said, and you don't like the idea 22 that's said, you have to make the objection. The 23 objection should state objection and the legal 24 grounds. There are no speaking objections allowed 25 unless I tell you you can make a speaking 00006 1 objection. If you don't know what that means, too 2 bad. These are evidentiary hearings. So the 3 moving party will go forward, present their 4 evidence. If the other side wants to object, make 5 an objection, as I've just indicated. Then there 6 can be a response to the moving party's relief. 7 And then there could be rebuttal. Just like it 8 takes place in civil proceedings. There is no 9 free-for-all. There is no just saying whatever 10 you feel like saying no matter what. 11 Okay. I think the first motion is Eliot 12 Bernstein's petition or motion to disqualify 13 counsel. 14 You're up, Mr. Bernstein. 15 MR. ELIOT BERNSTEIN: Okay. Can I make an 16 opening statement? 17 THE COURT: You may. 18 MR. ELIOT BERNSTEIN: Okay. First thing I 19 have, all my, what you would call, evidence has 20 been submitted in pleadings as -- to the court -- 21 and served to all the people already. Do you 22 want -- he asked me if I wanted to submit this 23 into evidence. It's up to you. I'm probably only 24 going to use a few things of it. 25 THE COURT: Okay. All right. Because you're 00007 1 pro se, I'll say again, what I think the lawyers 2 understood. Whatever you may have done may or may 3 not comply with the rules of evidence. 4 MR. ELIOT BERNSTEIN: Okay. 5 THE COURT: The hint is, it hasn't. 6 MR. ELIOT BERNSTEIN: Do I -- 7 THE COURT: So -- let me finish. I'm not 8 going to give you any advisory opinions on how to 9 proceed with the case because this is a, you know, 10 a very hotly-contested hearing, and, you know, 11 we're all going to be treated the same way by me. 12 So you can't ask me if you have evidence in 13 already -- because we haven't already started the 14 hearing -- so the answer to it is, no. There is 15 no evidence in this hearing yet. We haven't even 16 started yet. We're starting it right now. 17 MR. ELIOT BERNSTEIN: Okay. 18 THE COURT: Okay. So evidence can come in 19 the form of a document, or a witness. You have to 20 get it into evidence, though. You have to know 21 how to do that. And so my bailiff is correct, if 22 you want a document to come into evidence, then 23 you need to mark it, stamp it, and then make sure 24 the other side has a copy of it. A pleading is 25 not evidence. Pleadings and evidence are two 00008 1 different things. 2 Okay. Opening statement. 3 MR. ELIOT BERNSTEIN: First, I'd like to 4 state for the record that I, Eliot Bernstein, have 5 never made a representation that I'd like to be 6 the successor PR of the estate and trusts of my 7 mother and father. Mr. Feaman and Mr. Stansbury 8 have endorsed me in one of their pleadings as a 9 candidate due to their perceived integrity of my 10 actions thus far in the matters. And as the only 11 beneficiary who has no involvement in any of the 12 egregious acts of bad faith and violations of law 13 that have taken place and been proven thus far in 14 these matters. 15 And I thank them profusely for their 16 support, but I decline due to, amongst other 17 things, the conflicts of interest that are now 18 inherent between the children of my parents, 19 Ted included, me included, and our children. 20 This is due to the fact that the beneficiaries 21 may either be the children or the 22 grandchildren, depending upon the court's final 23 disposition on the dispositive document and 24 which ones will prevail, that's due to the 25 fraud that's taken place by the former PR, 00009 1 co-trustees, and counsel that have resigned 2 already and been removed, admits the fraud they 3 created. 4 I was advised by counsel Christine Yates 5 at Tripp Scott that I was conflicted in 6 these -- 7 MR. ROSE: Objection. 8 THE COURT: Okay. Okay. Stop. Objection is 9 made. You need to stop. Grounds? 10 MR. ROSE: Relevancy in relation to the first 11 motion being heard. 12 THE COURT: Sustained. 13 Okay. Sustained. 14 MR. ELIOT BERNSTEIN: Okay. 15 THE COURT: So, Mr. Bernstein, focus -- 16 MR. ELIOT BERNSTEIN: I mean -- 17 THE COURT: No. No. Listen. Focus. I'm 18 doing the motion to disqualify. 19 MR. ELIOT BERNSTEIN: Okay. I did this for 20 all of them. 21 THE COURT: Okay. Yeah, but, see, that's not 22 a focus. So get -- it probably would be helpful 23 for you to get your motion in front of you. 24 Remember you have the burden of proof; you need to 25 be able to prove what you plead and have a legal 00010 1 basis for it. And I need -- can someone give me a 2 courtesy copy of the motion to disqualify and any 3 written responses. Because I have a bunch of 4 papers and it will help me from not having to 5 search. 6 MR. ROSE: May I approach? 7 THE COURT: Sure. 8 MR. ROSE: There were two motions, Your 9 Honor. I think this is the second one; says 10 motion to remove Alan B. Rose, Esq. I think the 11 earlier one was an emergency one. I believe 12 that's the correct one. 13 THE COURT: All right. So -- okay. 14 Mr. Bernstein, the motion that counsel handed me 15 is called motion to remove Alan B. Rose, Esq. The 16 certificate of service date is June 24, 2014, 17 twenty-nine pages, plus an attachment. Is that 18 the motion? 19 MR. ELIOT BERNSTEIN: That's one of the two. 20 THE COURT: Okay. And the other one is... 21 MR. ELIOT BERNSTEIN: It's the emergency 22 motion you said you denied there is an emergency 23 to be heard. 24 THE COURT: All right. Let me see that one 25 as well. Do you have an extra copy? 00011 1 MR. ROSE: I thought the one replaced the 2 other, I don't know if I have a copy. 3 THE COURT: He says it didn't, so I'm 4 going -- 5 MR. ROSE: I do have a copy of it. 6 THE COURT: Is this a clean copy? 7 MR. ELIOT BERNSTEIN: Did you want that copy? 8 THE COURT: No. No, I mean, if you are using 9 it. 10 MR. ELIOT BERNSTEIN: Yeah, I am. Sorry. 11 THE COURT: Give it back. 12 MR. ROSE: May I approach, Your Honor? 13 THE COURT: Yeah. 14 MR. ROSE: I believe this is the earlier one, 15 the June 23rd. 16 THE COURT: Okay. Which one I denied as an 17 emergency, but I think Mr. Bernstein is correct, 18 it's allowed to proceed on a non-emergency basis, 19 but we're doing now disqualification. Okay. So, 20 Mr. Bernstein, let me -- time is of the essence, 21 we need to accomplish a lot, focus in on the 22 motion to disqualify. You want to -- I'll let you 23 make a clean opening statement on the motion to 24 disqualify. 25 MR. ELIOT BERNSTEIN: Okay. I believe that 00012 1 Alan Rose should be disqualified as counsel 2 because he has worked intimately with the people 3 who he's replacing as counsel in these matters 4 from the beginning and onset to perpetrate a 5 series of frauds that have been discovered on the 6 court to change beneficiaries through a series of 7 documents that were presented to the court, to 8 counsel, Christine Yates, and others, all to 9 advance that fraud. He's been hired and retained 10 by those people. And he now is replacing the 11 people you've let go for the fraud. And it is in 12 everybody's best interests that all remnants of 13 the fraud be removed from the court, and any 14 parties involved in any advancement of such 15 documents, or the actual fraud to change the 16 beneficiaries and make distributions to improper 17 parties. Mr. Rose has been involved, I believe, 18 since day one of Tescher and Spallina that 19 resigned, counsel who resigned for those frauds, 20 et cetera. 21 That's my opening. 22 THE COURT: Okay. All right. I'll go now my 23 right to left. Opening by Stansbury side. 24 MR. FEAMAN: No position on this motion. 25 THE COURT: Okay. Mr. Brown, curator. 00013 1 MR. BROWN: No position on this motion. 2 THE COURT: Mr. Rose or -- and/or 3 Mr. Pankauski, opening. 4 MR. ROSE: I think the motion is legally 5 insufficient and should be denied. And the facts 6 that you've just heard are not accurate. If you 7 want to start with the evidence, I think we should 8 go to the evidentiary part. 9 THE COURT: All right. 10 Opening? 11 MR. MORRISSEY: I have no opening. 12 THE COURT: All right. Your first witness. 13 MR. ELIOT BERNSTEIN: No witnesses. 14 THE COURT: Okay. You're moving into -- any 15 document into evidence? 16 MR. ELIOT BERNSTEIN: I do want to call a 17 witness. Can I call Alan Rose? 18 THE COURT: Yeah. Mr. Rose, come up here. 19 MR. ROSE: Can I have a paper to make a note? 20 THE COURT: Yeah, sure. 21 MR. ROSE: Not that I do, but my memory -- 22 THE COURT: Witnesses are allowed to take 23 notes. 24 THEREUPON, 25 ALAN B. ROSE, ESQ., 00014 1 a witness herein being of lawful age, and being first 2 duly sworn in the above cause, testified on under oath 3 as follows: 4 THE COURT: Okay. Have a seat. Go ahead. 5 DIRECT EXAMINATION 6 BY MR. ELIOT BERNSTEIN 7 Q Mr. Rose, could you tell us when you -- what 8 brought you into this estate of Simon and Shirley, and by 9 who? 10 A In which capacity? 11 Q In all your capacities. 12 A Okay. My first involvement in the matters 13 was -- actually pre-dates any involvement in the 14 estate. I was retained by Ted Bernstein and several 15 companies to represent them in a civil action brought 16 by William Stansbury. I was not directly involved in 17 the estate proceedings at that time. There came a 18 point in time later when there was some minor overlap 19 in issues between the estate proceedings and the 20 representation in the Stansbury litigation, and so I 21 had some limited contact with Mr. Tescher, Mr. Spallina 22 because there were issues that were relevant to the 23 Stansbury litigation. At some point in January 2009 we 24 learned from a discussion that Mr. Tescher had with Ted 25 Bernstein that there had been a problem with some 00015 1 documents. And from that point forward, Ted Bernstein 2 retained me to represent him in connection with these 3 estate proceedings. I think I had attended some estate 4 proceeding hearings, but not as Ted's counsel in these 5 proceedings at the time. 6 THE COURT: Okay. But I'm a little confused. 7 You say in January of 2009 you were hired by Ted 8 in connection with the estate of Simon Bernstein? 9 THE WITNESS: January 2014, Your Honor. 10 THE COURT: Okay. I thought you said January 11 of '09. 12 MR. ROSE: I meant to say January 9th of 13 2014, I'm sorry. 14 THE COURT: Okay. That makes more sense. 15 Go ahead. Next question. 16 BY MR. ELIOT BERNSTEIN 17 Q Did you attend a Palm Beach County Sheriff 18 investigation of Ted Bernstein in January of 2014? 19 A I attended an investigation as counsel for 20 Ted Bernstein. As part of the investigation I went 21 with him -- 22 THE COURT: So is the answer yes? 23 THE WITNESS: I guess, yes. 24 BY MR. ELIOT BERNSTEIN 25 Q Did you make statements to the sheriff on that 00016 1 day? 2 A I'm sure we spoke with him. 3 Q Who spoke with him? 4 A We had a -- the sheriff was doing an 5 investigation. 6 THE COURT: Okay. So listen to the question. 7 Answer the question asked. And there is no we 8 directed to you. You're you. 9 MR. ELIOT BERNSTEIN: Thank you, Your Honor. 10 THE WITNESS: Ted and I -- 11 THE COURT: You're you. You're not Ted. He 12 asked the question what statements did you make. 13 And you need to listen, Mr. Rose, to the question. 14 This isn't a tricky process if you listen. 15 THE WITNESS: I thought the question was who 16 made the statements. 17 THE COURT: No, what statements did you make 18 to the sheriff? 19 THE WITNESS: I don't recall. 20 BY MR. ELIOT BERNSTEIN 21 Q Do you recall statements to the sheriff being 22 made that your client had taken inappropriate, improper 23 distributions of assets? 24 A No. 25 Q Are you aware that your client made statements 00017 1 that he had never read the dispositive documents he was 2 operating under? 3 A I don't believe that's accurate of what was 4 said. 5 Is this hearsay, I mean? 6 THE COURT: Answer the question. No 7 objection. Go ahead. 8 THE WITNESS: Can I object? 9 THE COURT: You could. Okay. You can 10 object. 11 MR. ELIOT BERNSTEIN: Are you objecting as 12 your own pro se, counsel -- 13 THE COURT: Hold on. Hold on. Hold it. I 14 run the objection show, not you, Mr. Bernstein. 15 THE WITNESS: I recalled the discussion where 16 Mr -- I think it was Detective Miller had asked 17 about -- well, see, I think it's -- 18 THE COURT: Just answer the question as best 19 as you can, but listen to what the question is. 20 You want the question read back? 21 THE WITNESS: Sure. 22 THE COURT: Hold on. Mr. Reporter, please 23 read the question back. 24 (Record read) 25 THE WITNESS: No. 00018 1 MR. ELIOT BERNSTEIN: Okay. Can I have him 2 read that into the record? 3 THE COURT: Read what into the record? 4 MR. ELIOT BERNSTEIN: Part of the Palm Beach 5 County Sheriff Office report. 6 THE COURT: Right now you're questioning him. 7 MR. ELIOT BERNSTEIN: Can I ask him to read 8 this statement from the sheriff's report? 9 THE COURT: I don't -- since I don't know 10 what you have or what you want to do, I can't 11 really answer you. You can ask him a question. 12 MR. ELIOT BERNSTEIN: Can I -- 13 THE COURT: You can approach the witness. 14 MR. ELIOT BERNSTEIN: Okay. Thank you. 15 BY MR. ELIOT BERNSTEIN 16 Q Can you read that? 17 A Objection, hearsay, authenticity, 18 materiality. 19 THE COURT: He can show you a document for 20 the purposes of refreshing your recollection. Why 21 don't you read what -- don't speak about it -- 22 read what he's showing you, and then tell me when 23 you're done reading it. 24 THE WITNESS: I've read it, Your Honor. 25 THE COURT: Now, take it back. Now you ask a 00019 1 clean question. 2 BY MR. ELIOT BERNSTEIN 3 Q Did that refresh your memory about making 4 statements to the Palm Beach County Sheriff's? 5 A It refreshed my memory that we made 6 statements. 7 THE COURT: There is no we. You. 8 THE WITNESS: That I made a statement. 9 BY MR. ELIOT BERNSTEIN 10 Q Because it says -- 11 THE COURT: Can't read it. 12 MR. ELIOT BERNSTEIN: I can't? 13 THE COURT: No. You can ask him a question, 14 but you just can't read it. 15 BY MR. ELIOT BERNSTEIN 16 Q Okay. Did you read the part where it says -- 17 THE COURT: No, you can ask him a question. 18 Can't read the document. It's not in evidence. 19 BY MR. ELIOT BERNSTEIN 20 Q Okay. 21 THE COURT: You can say did you say this. 22 BY MR. ELIOT BERNSTEIN 23 Q Has Eliot Bernstein notified you that he will 24 be filing actions, both civil and criminal, against you? 25 A Eliot Bernstein has sent me a lot of e-mails. 00020 1 He's actually sent e-mails to every single member of my 2 firm, secretary, legal assistant, paralegal, 3 threatening -- 4 THE COURT: Okay. Mr. Rose, that's not the 5 question. 6 BY MR. ELIOT BERNSTEIN 7 Q Threatening what? 8 THE COURT: No. No. Stop, you two. You're 9 heading in the wrong direction. Listen to the 10 question. If it's not objected to, answer the 11 question. 12 THE WITNESS: Yes. 13 BY MR. ELIOT BERNSTEIN 14 Q Are you aware that Robert Spallina fabricated 15 documents, trust documents? 16 A I'm aware that Robert Spallina -- 17 THE COURT: Yes or no, then you can explain. 18 THE WITNESS: Yes. Robert Spallina 19 fabricated a document. And that document was 20 brought to our attention, and we've taken 21 corrective action immediately with regard to it. 22 BY MR. ELIOT BERNSTEIN 23 Q What corrective actions? 24 A We demanded that Mr -- well, first of all, 25 when we first learned about it was on a Friday 00021 1 afternoon in January. Mr. Bernstein contacted -- Ted 2 Bernstein contacted me. And I met with Ted Bernstein 3 Friday, Saturday, and Sunday. And on Sunday we 4 retained new counsel, Mr. Pankauski. I spoke to 5 Mr. Tescher. I advised him that in light of his 6 revelation they would need to immediately withdraw, 7 that he should put his carrier on notice, and that we 8 were going to be taking action as we deemed appropriate 9 to rectify the problems. I spoke to Mr. Tescher on the 10 Monday morning. Mr. Bernstein and I contacted the 11 Florida Bar and we were advised there was some 12 investigation pending. Since that date, we have had 13 numerous discussions working through with 14 professionals, the malpractice carrier for Tescher & 15 Spallina, to determine if there was a way to resolve 16 issues in the Shirley side of this because everything 17 that happened with them is the Shirley side, not the 18 Simon side. 19 THE COURT: Next question. 20 BY MR. ELIOT BERNSTEIN 21 Q Have you -- from your statements just now, it 22 became apparent that you are claiming that you have 23 worked with Don Tescher, Robert Spallina, and Ted in 24 preparation of their statements for the Palm Beach County 25 Sheriff's investigation? 00022 1 A No. 2 MR. PANKAUSKI: Objection, mischaracterizes 3 his testimony. 4 BY MR. ELIOT BERNSTEIN 5 Q Are you aware -- 6 THE COURT: Slow down. Stop. Let me rule. 7 You've got to give me a chance. One, he answered 8 before the objection. But, two, he answered no. 9 Next question. 10 BY MR. ELIOT BERNSTEIN 11 Q Have you worked with Don Tescher and Robert 12 Spallina at all in these matters? 13 A In the Bernstein matters? 14 Q Any of the matters relating to the Bernsteins. 15 A Yes. 16 Q Okay. Have you worked with them regarding the 17 documents that were altered? Have you spoken to them 18 about those documents? 19 A Objection, compound. Two different 20 questions. 21 THE COURT: Okay. Break it down. 22 BY MR. ELIOT BERNSTEIN 23 Q Have you spoken to Robert Spallina or Don 24 Tescher regarding the fraudulent documents? 25 A Absolutely, I have. 00023 1 Q Okay. Good. Have you notified your insurance 2 carrier that you've been -- that allegations of fraud and 3 forgery and your involvement in all that have been made 4 against you? 5 A Objection, relevancy. 6 THE COURT: Sustained. It's not relevant to 7 a motion to disqualify, whether he notified his 8 carrier. 9 MR. ELIOT BERNSTEIN: It isn't? Wouldn't it 10 show his character and fitness to follow the 11 rules? 12 THE COURT: Okay. I ruled. So, 13 Mr. Bernstein, don't question my ruling. 14 MR. ELIOT BERNSTEIN: Got you. No, I'm -- 15 THE COURT: Okay. Go ahead. 16 BY MR. ELIOT BERNSTEIN 17 Q Have you notified the beneficiaries of the Bar 18 actions and all these other actions you've taken? 19 MR. PANKAUSKI: Objection to form. 20 THE COURT: Sustained. You need to -- you're 21 vague. 22 MR. ELIOT BERNSTEIN: Who objected? 23 THE COURT: Mr. Pankauski. 24 MR. ELIOT BERNSTEIN: Are you representing 25 him? 00024 1 THE COURT: No. No. Stop. Stop. You 2 violated my instruction. We're taking a recess. 3 I'm going to sanction you. I warned you don't do 4 that. 5 MR. ELIOT BERNSTEIN: Do what? 6 THE COURT: You don't have conversation, only 7 with me. You don't ask him who he represents. 8 MR. ELIOT BERNSTEIN: Okay. 9 THE COURT: That's outside the rules of 10 civility and professionalism, even though you're 11 pro se. You're becoming over the line of what's 12 proper. Okay. Listen to me carefully. 13 Discipline yourself. One more time, you're done. 14 MR. ELIOT BERNSTEIN: Okay. 15 THE COURT: As well as everybody else who 16 violates my rules. 17 MR. ELIOT BERNSTEIN: Okay. 18 THE COURT: Okay. Go ahead. 19 MR. ELIOT BERNSTEIN: I didn't understand 20 that, I'm sorry. 21 THE COURT: Okay. Do you understand it now, 22 what the rules are? 23 MR. ELIOT BERNSTEIN: Kind of. 24 THE COURT: Well, you need to. 25 MR. ELIOT BERNSTEIN: Okay. So I can't 00025 1 ask -- 2 THE COURT: You can ask questions and they'll 3 answer, but you can't start having dialogue with 4 lawyers. You can ask me, if you want. But 5 they're making an objection, but you can't say -- 6 you can't question the person who makes the 7 objection. Let me rule. That's my job. 8 MR. ELIOT BERNSTEIN: Okay. 9 THE COURT: Go ahead. 10 BY MR. ELIOT BERNSTEIN 11 Q Have you spoken to Ted Bernstein about his 12 position -- 13 MR. PANKAUSKI: Objection. 14 THE COURT: Hold on. Stop. That's not 15 proper because he has to finish the question in 16 its entirety. So before you answer, though, but, 17 Mr. Bernstein, Eliot, I'm saying Eliot because 18 there is more than one Bernstein, you can finish 19 your question. Go ahead. 20 BY MR. ELIOT BERNSTEIN 21 Q Well, I'll change that question. Are you aware 22 that at the Palm Beach County Sheriff interrogation that 23 your client was claimed as to have taken improper 24 distributions against the advice of his counsel? 25 A Objection, hearsay. 00026 1 THE COURT: You can say yes or no without 2 violating hearsay rules. 3 THE WITNESS: I don't believe that's 4 accurate. 5 THE COURT: Next question. 6 BY MR. ELIOT BERNSTEIN 7 Q Did the altered document change anything with 8 the beneficiaries of the estate and trusts? 9 A That's a question -- 10 THE COURT: Let me caution you again. We're 11 only dealing now with motions directed in the 12 Simon Bernstein case. And you're only moving to 13 disqualify him as to the Simon case. 14 MR. ELIOT BERNSTEIN: Well, Simon -- 15 THE COURT: No, remember. Okay. No, I'm not 16 inviting dialogue. 17 MR. ELIOT BERNSTEIN: Okay. 18 THE COURT: Your motion is filed in Simon -- 19 stop. I talk, you listen. Your motion is filed 20 in Simon's case. And your motion to disqualify 21 Mr. Rose is in Simon's case. Next question. 22 BY MR. ELIOT BERNSTEIN 23 Q Did Simon execute documents that allegedly 24 changed beneficiaries in his wife's estate? 25 A No. 00027 1 Q Did Robert Spallina alter documents for Simon 2 that affected Shirley's estate? 3 A I don't think -- I think the answer to that 4 is, no, but if I can explain -- 5 THE COURT: No, is the answer. Next 6 question. 7 BY MR. ELIOT BERNSTEIN 8 Q Are you aware of any documents that try to 9 change the beneficiaries that were made by Simon after 10 Shirley's death? 11 A Can I explain the answer? 12 THE COURT: You can answer if you are aware, 13 and then explain. 14 THE WITNESS: I don't think that's an 15 accurate statement, but if I can explain. 16 THE COURT: Go ahead. You're allowed to. 17 THE WITNESS: So Simon was given a power of 18 appointment in the Shirley trust. Simon exercised 19 that power of appointment in the Shirley trust in 20 a way that was consistent with Simon's wishes. I 21 believe after Simon died, all Simon's documents 22 remained intact and are proper. There is a legal 23 question that someone raised whether Simon had the 24 power to exercise the power of appointment in the 25 manner in which he did, and whether or not -- and 00028 1 that's an issue that's going to have to be decided 2 in a trust construction action. 3 THE COURT: Okay. Next question. 4 BY MR. ELIOT BERNSTEIN 5 Q I notified you that you were respondents and 6 sent you documents with the new docket sheet where we 7 inserted you as a respondent. Are you aware that I've 8 attempted to put you in as a respondent in the Simon 9 estate? 10 A I'm aware that you have done something that I 11 don't understand because it's not a process I'm 12 familiar with legally, but he's tried to make me a 13 respondent in some case, but I'm -- I don't understand. 14 I'm just a lawyer representing a party and I don't 15 think I'm properly a respondent, nor do I think that 16 anything has been done that is of any legal validity. 17 THE COURT: Okay. Next question. 18 BY MR. ELIOT BERNSTEIN 19 Q Are you represented by counsel in those 20 capacities that I listed you as a respondent? 21 A I don't recognize that I'm a respondent in 22 anything, but -- so I can't -- I don't know how to 23 answer the question. 24 Q Would you like to see the court docket? Can I 25 show -- 00029 1 THE COURT: The question of whether he's 2 represented by counsel is irrelevant to 3 disqualification of him. 4 BY MR. ELIOT BERNSTEIN 5 Q Okay. So I'm just going to stick with are you 6 a -- you know you're a respondent that's been added to 7 the court docket? 8 A I don't believe I'm a respondent in this 9 case. And, I believe, that you -- may I, Your Honor? 10 THE COURT: You may. You can complete your 11 answer. 12 THE WITNESS: I believe that you have learned 13 that if you try to join people in a case, then you 14 can use it as basis to disqualify them. And I 15 believe you've done that consistently over the 16 years of your long litigation practice. 17 MR. ELIOT BERNSTEIN: Objection. I think 18 it's speculation and -- 19 THE COURT: Okay. All right. Stop your 20 answer. Next question. 21 BY MR. ELIOT BERNSTEIN 22 Q Have you knowingly assisted, engaged, in any 23 conduct involving the perpetration of any frauds, deceit, 24 or misrepresentation in these matters? 25 A No. 00030 1 Q Can you tell us about your relationship with 2 Ted Bernstein? 3 MR. PANKAUSKI: Object. Objection, 4 attorney-client privilege. Relevance. 5 BY MR. ELIOT BERNSTEIN 6 Q How did you meet Ted Bernstein? 7 MR. PANKAUSKI: Objection, attorney-client 8 privilege. Relevance. 9 THE COURT: Sustained. 10 MR. ELIOT BERNSTEIN: What's that mean, ask 11 the next question? 12 THE COURT: Yes. 13 BY MR. ELIOT BERNSTEIN 14 Q Okay. Are you -- do you have any business 15 dealings with Ted Bernstein? 16 MR. PANKAUSKI: Objection, attorney-client 17 privilege. 18 BY MR. ELIOT BERNSTEIN 19 Q Other than attorney-client? 20 MR. PANKAUSKI: Relevance. 21 THE COURT: Well, is that a ground for your 22 motion for removal? 23 MR. ELIOT BERNSTEIN: Yes. 24 THE COURT: Is it in the motion? 25 MR. PANKAUSKI: I don't believe business 00031 1 relations are. Okay. 2 THE COURT: Okay. So your motion is long, do 3 you know where it is in the motion? 4 MR. ELIOT BERNSTEIN: Okay. I'll strike the 5 question. 6 THE COURT: Okay. Thanks. Go ahead. 7 MR. ELIOT BERNSTEIN: Okay. I'm done. 8 THE COURT: Okay. All right. 9 CROSS-EXAMINATION 10 BY MR. PANKAUSKI 11 Q Mr. Rose, in the Simon estate, who do you 12 represent? 13 A Within the Simon estate, I represent Ted 14 Bernstein as successor trustee of the Simon Bernstein 15 trust. 16 Q Have you ever represented anybody else? 17 A Not in particular -- I guess in this 18 particular estate I do represent Ted on the Shirley 19 side as well. 20 Q But in the Simon, you've never represented 21 Mr. Spallina? 22 A Absolutely not. 23 Q You've never represented Mr. Tescher? 24 A They're adverse parties. Absolutely not. 25 MR. PANKAUSKI: Okay. Thank you. No further 00032 1 questions, Your Honor. 2 THE COURT: Any redirect on those questions? 3 Doesn't mean you have it, you just have a 4 right to if you think of something. 5 MR. ELIOT BERNSTEIN: No. 6 THE COURT: Anyone else have any questions? 7 Okay. Have a seat. Your next witness. 8 MR. ELIOT BERNSTEIN: None. 9 MR. ROSE: Move for involuntary -- 10 THE COURT: Hold on. Wait. Wait. 11 MR. ROSE: Sorry. 12 THE COURT: Okay. Any other evidence you 13 want to submit? 14 MR. ELIOT BERNSTEIN: No, thank you. 15 THE COURT: Motion to disqualify denied. 16 Okay. What's the next motion -- and 17 that's the -- formally the motion to remove 18 Alan Rose, that's the heading of that one. And 19 let me just get to this. It's a long style. 20 It was called emergency motion to remove Alan 21 Rose, et cetera. I'll give you the certificate 22 of services. 23 MR. ROSE: Would you like an order, Your 24 Honor? 25 THE COURT: Hold on. Hold on. Just let me 00033 1 finish. The emergency motion certificate of 2 service, I think, is June 23, 2014. And the other 3 motion to remove is June 24th. So both of those 4 motions are denied. The grounds are, there is 5 insufficient evidence to disqualify Mr. Rose 6 pursuant to the law. 7 Okay. All right. So the next motion is 8 the petition by -- hold on. Help me out, 9 Mr. Bernstein, because I think it's your 10 pleading; deals with the successor PR. 11 MR. ELIOT BERNSTEIN: Okay. Yeah. We can go 12 with that. 13 THE COURT: I was told that is being heard in 14 conjunction with the petition to remove Ted 15 Bernstein as trustee. 16 MR. FEAMAN: There is an order that Your 17 Honor entered -- 18 THE COURT: Okay. Can I have that? 19 MR. FEAMAN: -- that specifically sets forth 20 the order and what they are. May I approach? 21 THE COURT: Okay. Good. Thanks. Okay. So 22 now we're dealing with the -- with the motions 23 concerning the appointment of successor PR. 24 MR. FEAMAN: Well, actually -- 25 THE COURT: That's number two. 00034 1 MR. FEAMAN: Just so the record is clear, 2 under number one, it also mentions Mr. Pankauski. 3 THE COURT: Well, I denied the motion. The 4 heading is the heading, but the entire motion is 5 denied, whatever -- 6 MR. FEAMAN: Good. I mean, thank you. 7 THE COURT: All right. So is it orderly -- 8 let me ask a question. It seems like the next 9 motion in line is Eliot's motion, but maybe it's 10 more than just Eliot, to -- for the appointment of 11 a successor PR of the estate. Is that the next 12 one? 13 MR. ELIOT BERNSTEIN: And Ben Brown and -- 14 right. All those. 15 THE COURT: Ben Brown is curator. 16 MR. ELIOT BERNSTEIN: He put in a motion for 17 PR, I think. 18 THE COURT: Okay. All right. So -- 19 MR. FEAMAN: Actually three motions, all 20 dealing with the same thing, which is to get a 21 successor personal representative. 22 THE COURT: Okay. All right. So Eliot 23 Bernstein has a motion to accomplish that? 24 MR. ELIOT BERNSTEIN: Right. 25 THE COURT: Does Ted Bernstein through you, 00035 1 Mr. Rose? 2 MR. ROSE: Yes, Mr. Bernstein has the first 3 petition to -- he filed a petition to be appointed 4 as the first successor personal representative in 5 his father's estate. 6 THE COURT: Is there -- you said there's 7 three. 8 MR. FEAMAN: Yes, Mr. Stansbury's motion to 9 appoint an independent, non-related party as 10 successor personal representative. 11 THE COURT: Okay. So the three parties, I 12 understand who. The task is to appoint a 13 successor PR. And so let me ask a couple of 14 questions preliminary to this, I'll make a note to 15 myself. Okay. So as we sit here today, am I 16 correct that there's no PR and that Mr. Brown is 17 the curator of the Simon Bernstein estate? 18 MR. FEAMAN: Yes, Your Honor. 19 THE COURT: Okay. True? 20 MR. ELIOT BERNSTEIN: Correct. 21 THE COURT: All right. So in order to 22 probably bring out the issues a little better and 23 actually help you, Eliot, because you're pro se, 24 I'm going to let Mr. Rose start. You'll be able 25 to fully deal with your motion as well. 00036 1 All right. You're up. So let me get a 2 brief opening. Here's what I want to know. On 3 your client, Ted Bernstein's, motion to appoint 4 successor PR, who does he want to have 5 appointed? 6 MR. ROSE: Ted Bernstein would like to be -- 7 suggested he was the appropriate candidate to be 8 appointed as successor PR. 9 THE COURT: All right. Mr. Stansbury, who is 10 it that you want -- I mean, Mr. Feaman, on behalf 11 of Mr. Stansbury. 12 MR. FEAMAN: We have put forth in our 13 pleadings, Your Honor, and attached the resumes of 14 Brian O'Connell and Michael Mopsick. I believe 15 Mr. O'Connell is in the courtroom today. 16 THE COURT: All right. 17 MR. MORRISSEY: Judge, for the record, my 18 clients have an objection to their petition. We 19 don't believe that they have standing as a 20 claimant. 21 THE COURT: So now announce who your clients 22 are. 23 MR. MORRISSEY: My clients are three 24 grandchildren; Molly, Simon, Alexander Bernstein, 25 Michael Bernstein and Eric Bernstein. 00037 1 THE COURT: So you say the creditor has no 2 standing. 3 MR. MORRISSEY: He's not a creditor, he's 4 just a claimant. 5 THE COURT: Okay. Got it. And Eliot, who 6 are you seeking to have, in your moving papers, to 7 be the successor PR of Simon's estate? 8 MR. ELIOT BERNSTEIN: I have -- I'm going to 9 possibly join with Peter and I would just 10 recommend anybody like a Ben Brown who's an 11 honest, independent third party. 12 THE COURT: Okay. So you want a non-relative 13 of what we're kind of calling an independent 14 lawyer to be PR, and it could be Brian O'Connell 15 or Mike Mopsick or somebody else that fits that 16 category? 17 MR. ELIOT BERNSTEIN: Anybody other than 18 my -- 19 THE COURT: Other than you and Ted? 20 MR. ELIOT BERNSTEIN: -- any of my siblings. 21 MR. ROSE: Just a brief opening? 22 THE COURT: Sure. 23 MR. ROSE: This is a relatively small estate. 24 There's, I think, under a million dollars left in 25 the estate. There are issues and they are 00038 1 relevant to some degree in the Shirley side, which 2 we'll talk briefly about what's going on in the 3 Shirley side. But in the Shirley side of it, Ted 4 was chosen by his mother to be her successor PR, 5 her successor trustee, after her husband passed 6 away. So she died first, although, she was 7 expected to outlive him. In her documents, Ted 8 would have been -- after her husband died, Ted is 9 successor PR. And he's serving in that role and 10 will tell you the job -- what he's doing in that 11 role, although it's difficult. 12 THE COURT: Let me get a question answered. 13 In Simon's estate, he died testate? 14 MR. ROSE: Yes. 15 THE COURT: Okay. So tell me what his will 16 says about PR. 17 MR. ROSE: His will says that Donald Tescher 18 and Robert Spallina are his personal 19 representatives -- co-personal representatives. 20 THE COURT: Hold on. 21 Okay. Go ahead. 22 MR. ROSE: And that was changed in 2012 from 23 William Stansbury; I think was previously named. 24 THE COURT: Okay. So let -- in the last 25 will, who is named in the will as PR sequentially? 00039 1 MR. ROSE: Solely -- there is solely one 2 selection, Robert Spallina, Donald Tescher as 3 co-personal representatives. That's in the last 4 will of Simon L. Bernstein. 5 THE COURT: All right. So does everyone seem 6 to agree, clearly, they're not going to do it, 7 correct? 8 MR. ROSE: Well, they were doing it. 9 THE COURT: Now, though, to be -- I mean, 10 they're not successor, they were the original 11 PR's, correct? 12 MR. ROSE: Correct. 13 THE COURT: Were they ever appointed? 14 MR. ROSE: They were. They were appointed 15 and serving. 16 THE COURT: And removed? 17 MR. ROSE: They resigned as a result of 18 conflict of interest. 19 THE COURT: Is anybody asking that they be 20 reappointed as successor? 21 MR. ROSE: No, sir. 22 THE COURT: All right. So here's my next 23 question. The will then is silent as a 24 replacement? 25 MR. ROSE: Yes, sir. 00040 1 THE COURT: So what statute or rule do I look 2 at that instructs the court as to who becomes the 3 successor PR? 4 MR. PANKAUSKI: You could -- you could 5 consider a majority in interest of the 6 beneficiaries. 7 THE COURT: What's the name of the statute I 8 look at? 9 MR. PANKAUSKI: 733.301. 10 THE COURT: Okay. All right. So this is a 11 testate estate. That statute says that there is 12 an order of preference for the PR or his successor 13 nominated by the will, or pursuant to a power. 14 We're passed that point, is that true? Because 15 it's not going to be Tescher and Spallina. 16 Everyone agree with that? 17 MR. PANKAUSKI: Yes, Your Honor. 18 MR. ELIOT BERNSTEIN: Yes, Your Honor. 19 THE COURT: The next order of preference is a 20 person selected by a majority in interest of the 21 persons entitled to the estate. All right. So to 22 try to move this along a little bit, and I'll 23 start on my left and go to my right. Who does 24 those representing Ted say falls within that 25 category, if anyone? 00041 1 MR. PANKAUSKI: No one falls into that 2 category. They -- 3 THE COURT: No. No, I'm not saying why. 4 Okay. What do you say to that -- hold on -- I may 5 have someone on Court Call I didn't know about. 6 MR. ROSE: He's important. 7 THE COURT: Okay. Who's that? 8 MR. ROSE: That's Mr. Bill Glasko. He 9 represents a group of the other beneficiaries. 10 THE COURT: We'll get him on. Irwin Block, 11 who does he represent? 12 MR. ROSE: He represents Tescher and 13 Spallina. 14 THE COURT: I wasn't aware anyone was on 15 Court Call, let's get them. 16 MR. ROSE: He just represents Mr. Tescher, 17 not both of them. 18 THE COURT: Okay. 19 Okay. Mr. Block? 20 MR. BLOCK: Yes, sir. 21 THE COURT: Sorry, didn't know you were on 22 Court Call. And we're in the middle of the second 23 hearing set today, which is the hearing dealing 24 with the appointment of a successor PR of Simon's 25 estate. And so I already ruled on the motion to 00042 1 disqualify, which was denied. And so that's where 2 we are now. Okay. So -- yes. 3 MR. ROSE: I'm sorry. 4 MR. BLOCK: Thank you, Judge. 5 THE COURT: I had asked Mr. Pankauski, do you 6 want to speak on that issue? 7 MR. ROSE: Under the order of preference 8 under 733.301? 9 THE COURT: Yes. 10 MR. ROSE: I think there's no majority in 11 interest that we were aware of at this point. 12 THE COURT: All right. So -- 13 MR. ROSE: Under 3, though -- 14 THE COURT: Hold on. I'm going to do this 15 one at a time. Okay. Mr. Feaman, do you have a 16 position on whether 733.3011(a) (2) applies? 17 MR. FEAMAN: Agreed, it does not apply. 18 THE COURT: Mr. Bernstein? 19 MR. ELIOT BERNSTEIN: I don't know the 20 statute, one more time on it real quick. 21 THE COURT: The number or what it says? 22 MR. ELIOT BERNSTEIN: What it says. 23 THE COURT: It says that there's a schedule 24 of order of preferences. And the second one is 25 the person selected by a majority in interest of 00043 1 the persons entitled to the estate. 2 MR. ELIOT BERNSTEIN: Okay. Yeah. No. 3 THE COURT: No. Okay. So everyone agrees 4 that doesn't apply. 5 The next order of preference is a devisee 6 under the will. If more than one devisee, the 7 court may select the one best qualified. 8 MR. ROSE: There is one devisee under the 9 will, and the devisee under the will is the Simon 10 Bernstein trust. 11 THE COURT: Okay. Hold on. 12 So can a trust be a PR? 13 MR. ROSE: Well, the personal representative 14 of the trust -- the successor -- I'm sorry, the 15 successor trustee of the Simon Bernstein trust is 16 Ted Bernstein. 17 THE COURT: That's not my question. Can I 18 appoint a trust as a PR? 19 MR. ROSE: No, I think you need to appoint -- 20 THE COURT: An individual. 21 MR. ROSE: -- an individual or, 22 theoretically, you might be able to appoint a 23 corporate fiduciary, but we don't have one of 24 those. 25 THE COURT: Okay. So you say number three 00044 1 doesn't apply? 2 MR. ROSE: I say number three, the devisee is 3 the trustee. In fact, the trust is the sole 4 beneficiary of the estate. Even if you go back to 5 number two -- I hadn't thought of it this way. 6 Back up to number two. The only beneficiary of 7 the estate is the trust. And the trustee of the 8 trust is in favor of Ted being the personal 9 representative. 10 THE COURT: So you say that either on two or 11 three grounds under the statute, Ted Bernstein 12 being trustee of the Simon Bernstein trust, should 13 be the PR because that's the Simon Bernstein -- 14 the trust is the only devisee under the will? 15 MR. ROSE: The -- 16 MR. MORRISSEY: Judge, yeah, Mr. Rose -- 17 those are two grounds, a possible third is the 18 following. The beneficiaries of the trust are the 19 ten grandchildren. I represent four of those 20 grandchildren, all four of whom would support 21 Mr. Ted Bernstein. 22 THE COURT: Okay. 23 MR. MORRISSEY: As the personal 24 representative. So we might want to pool the ten 25 grandchildren. 00045 1 THE COURT: All right. I got that part. 2 Mr. Feaman, what do you -- do you say there is a 3 devisee under the will that is eligible for 4 appointment? 5 MR. FEAMAN: The devisee has not applied, 6 that would be the trust. The person that applied 7 is Ted Bernstein in his individual capacity. 8 THE COURT: Okay. Is that factually true? 9 MR. ROSE: I think factually. 10 THE COURT: Go ahead. 11 MR. FEAMAN: In addition, we suggest to the 12 court, that Mr. Bernstein is statutorily not 13 qualified as a result of a conflict of an 14 interest. 15 THE COURT: Okay. We're not at that level. 16 We're only dealing with order of preference. 17 MR. FEAMAN: All right. So, therefore, if 18 (a) (1) (2) or (3) does not apply, then we would 19 default to Subsection 3, Your Honor. 20 THE COURT: Okay. I'll get to there in a 21 second. So do you have a legal position on that? 22 MR. ELIOT BERNSTEIN: I do. 23 THE COURT: What's that? 24 MR. ELIOT BERNSTEIN: We might actually have 25 to go back to (1), the will having a devisee. 00046 1 THE COURT: No. No, that's -- (3) is a 2 devisee. 3 MR. ELIOT BERNSTEIN: Okay. 4 THE COURT: Mr. Rose says the devisee under 5 the will is Simon's trust and Ted Bernstein as 6 trustee. 7 MR. ELIOT BERNSTEIN: No, the named person 8 under the will. The number (1), where it's a 9 named person under the will. 10 THE COURT: The PR nominated by Simon? 11 MR. ELIOT BERNSTEIN: Right, in the document. 12 In the will. The problem I have is that we're 13 working off a document -- this is part of what 14 you're going to have to rule on further. These 15 are 2012 documents my dad allegedly signed. 16 THE COURT: Well, those are the ones -- that 17 right now is what I'm probating. I'm probating 18 that will. 19 MR. ELIOT BERNSTEIN: I just want to put on 20 the record that the Governor Rick Scott's 21 office -- 22 THE COURT: No. No. If you start going 23 there, you're done. 24 MR. ELIOT BERNSTEIN: They are improperly 25 notarized. 00047 1 THE COURT: I'm not asking you about that. 2 You can't give me evidence on that, I'm not asking 3 for evidence. I'm asking for your position. You 4 can't tell me about Rick Scott in your position. 5 MR. ELIOT BERNSTEIN: Okay. In the 2008 6 wills and trusts -- 7 THE COURT: Okay. But are those being 8 probated? 9 MR. ELIOT BERNSTEIN: They may be. 10 THE COURT: Okay. But they're not. I'm 11 dealing with the 2012. I got your position. 12 MR. ELIOT BERNSTEIN: I got it. Okay. 13 THE COURT: So -- okay. So the 731.201, 14 subparagraph 11, defines a devisee as a person 15 designated in the will to receive a devise. It 16 also says that in the case -- in the case of a 17 devise to an existing trust or trustee, or to a 18 trust or trustee of a trust described in the will, 19 the trust or trustee, rather than the 20 beneficiaries, is the devisee. 21 So if someone published to me the exact 22 wording that you say the will that's subject to 23 probate contains dealing with the subject of 24 who is a devisee under the will. So if someone 25 has to read me word for word what the will 00048 1 says. 2 MR. ROSE: Article I, tangible personal 3 property, says personal property goes in 4 accordance with the separate read memorandum. I 5 don't think that's at issue. Article II is the 6 exercise of power of appointment. Article III 7 says residue of my estate. Make sure I have the 8 right one, Your Honor. I give all the residue of 9 my estate, including my homestead, to the trustee 10 then serving under my revocable trust agreement 11 dated May 20, 2008, as amended and restated from 12 time to time, and on even dates herewith, the 13 existing trust, as trustee without bond, but I 14 don't exercise any powers of appointment held by 15 me, except as provided in Article II above, and in 16 the later paragraph titled death costs. The 17 residue shall be added to and become a part of the 18 existing trust and shall be held under the 19 provisions of said agreement in effect at my 20 death, or if this is not permitted by applicable 21 law, or the existing trust is not then in 22 existence under the provisions of said agreement 23 as existing today, if necessary to give effect to 24 this gift, but not otherwise said agreement as 25 existing today is incorporated herein by 00049 1 reference. 2 THE COURT: Okay. So who is the trustee 3 under that revocable trust? 4 MR. ELIOT BERNSTEIN: Don Tescher. 5 MR. ROSE: Under the amended and restated 6 trust agreement, there were two named trustees, 7 they were to serve together, Donald and Robert, 8 and the document -- Donald Tescher and Robert 9 Spallina -- and the document provides that upon -- 10 it does not have a successor named in the Simon 11 trust, and it says that the last serving trustee 12 has the right to appoint the successor trustee. 13 And Donald Tescher is the last serving trustee 14 appointed Ted Bernstein. We've taken 15 Mr. Tescher's deposition, and he can explain to 16 you by deposition the reasons why he appointed Ted 17 as a successor trustee. 18 THE COURT: Okay. 19 MR. ROSE: Sometime, I think, February, Ted 20 has been serving as the successor trustee. 21 MR. ELIOT BERNSTEIN: Since what time? 22 THE COURT: You can repeat what you said. 23 MR. ROSE: There's documents -- they were 24 circulated to all the parties -- I think it was 25 sometime in February of this year. 00050 1 THE COURT: Okay. Let me look at something 2 else. And has Ted Bernstein, in his capacity as 3 trustee or successor trustee of Simon's estate, 4 made an application to be the PR of Simon's 5 estate? 6 MR. ROSE: I believe -- 7 THE COURT: That's yes or no. It can't be 8 either one -- those are the only two choices. 9 MR. PANKAUSKI: Hold on one second, Your 10 Honor. That's his petition for appointment as PR. 11 THE COURT: In his capacity as trustee? 12 MR. PANKAUSKI: No. No. 13 THE COURT: Okay. The answer is no? 14 MR. PANKAUSKI: Yeah, Ted Bernstein has asked 15 Your Honor to appoint him as PR. The petition was 16 not filed by Ted Bernstein as trustee of his dad's 17 rev trust. 18 MR. ROSE: The petition does recite, Your 19 Honor, that Ted Bernstein has been appointed to 20 and accepted the appointment to serve as the 21 successor trustee of the Simon Bernstein trust 22 into which the estate's assets pour over. 23 THE COURT: Okay. All right. No. 730 -- 24 I'm ruling -- 733.031, subsection (1) (a) is a 25 pecking order of preferences. The only one that 00051 1 could apply, based upon what everyone's told me to 2 the Simon Bernstein estate is if there is a 3 devisee under the will, and the devisee under 4 Simon Bernstein's will is a trustee -- includes a 5 trustee under his revocable trust, it then -- and 6 that trustee in the will is Simon -- I'm sorry, 7 Tescher and Spallina. Subsection (3) says, if no 8 application is made by any of the persons 9 described in subsection (1), the court may appoint 10 a capable person. So the will, four corners of 11 it, only allows, as far as the devisee, which is 12 the trustee under the revocable trust, that is 13 only Spallina's group, Tescher and Spallina, and 14 Ted has made an application only in his individual 15 name. Hold on. Let me look at something else. 16 Okay. I'm going to appoint a capable 17 person. That's my ruling. So if you folks had 18 a position to determine who a capable person 19 would be? 20 MR. PANKAUSKI: No one filed that petition. 21 THE COURT: That could be, but I can still do 22 that -- 23 MR. FEAMAN: Excuse me, the petition that was 24 filed by -- the motion filed by Mr. Stansbury 25 specifically references two capable people, and 00052 1 attaches their resumes. 2 THE COURT: All right. So -- 3 MR. FEAMAN: That was done weeks ago. 4 MR. ROSE: I think Mr. Ted Bernstein in his 5 petition to be -- he's a capable person. 6 THE COURT: I'm not saying he's not. He 7 could -- everyone -- anyone is open in that 8 category. 9 MR. ROSE: That's fine. That's what we 10 prepared to try today. 11 THE COURT: So here's my question. Listen 12 carefully, and then I'll let you folks tell me 13 whether you think this is fruitful or not. If you 14 all -- the material people here can agree upon who 15 that capable person is, then, you know, you have a 16 good shot of getting me to agree and appoint that 17 person. If you can't agree, then I have to have a 18 hearing to determine between the various potential 19 capable people who to appoint, assuming all those 20 people are qualified. So everyone using their 21 best judgment and thinking hats, and given what I 22 was told, which is only that the estate doesn't 23 have a whole lot of money, do you folks want to 24 litigate over who's going to be the PR of the 25 estate, or you want -- do you think you can spend 00053 1 a few moments and talk to each other and come up 2 with an agreement? 3 MR. ROSE: I mean, we don't want to litigate 4 the issue, but we've seen what's happened with a 5 curator. And I do think that we stand by the 6 position that the most logical person is Ted 7 who -- 8 THE COURT: I'm not looking for logic, I'm 9 looking for resolution. Because if you tell me 10 the estate doesn't have a lot of money and you 11 start litigating some of these issues, you wind up 12 in a position that may not be favorable to the 13 estate and the ultimate beneficiaries. 14 So remember that in deciding a capable 15 person, if there is someone who fits that 16 description, I am then allowed to deal with, 17 depending upon who it is, and whether they 18 agree, an issue such as limiting compensation, 19 so that I can preserve more money for the 20 estate and less by way of lawyer fees -- no 21 offense -- and other expenses. So, you know, 22 you all need to make a best interest of the 23 estate decision. The beneficiaries of the 24 estate, you tell me, is the Simon Bernstein 25 trust, of which there is ten grandchildren 00054 1 eligible to receive the money. The more we use 2 up on administrative and legal expenses, the 3 less available to them. Plus, I guess, 4 Mr. Stansbury's a creditor and he probably has 5 something to do with that. 6 MR. FEAMAN: If I could have 60 seconds of 7 the court's time to suggest -- 8 THE COURT: Go ahead. 9 MR. FEAMAN: -- why the court -- without even 10 getting into any conduct -- why the court can't 11 even consider Ted Bernstein. 12 THE COURT: Go ahead. 13 MR. FEAMAN: I would like to offer that. 14 Your Honor may recall that you permitted Ben Brown 15 to hire counsel in Chicago to file a motion to 16 intervene in that action on behalf of the estate 17 to attempt to collect life insurance proceeds 18 where the estate was not being represented. 19 Counsel was hired. Mr. Stansbury has fronted the 20 cost for that, as Your Honor said. And he filed a 21 petition to intervene. The plaintiffs in that 22 action then filed an opposition to the estate's 23 motion to intervene. And that opposition, which 24 was filed about a week ago, Your Honor, in 25 opposition -- direct opposition to the estate of 00055 1 Simon Bernstein's motion, was filed by -- comes 2 now the Simon Bernstein Irrevocable Insurance 3 Trust by Ted Bernstein, as trustee. And Ted 4 Bernstein, individually. So he has set himself up 5 in direct conflict with the position that this 6 estate is taking in Chicago. I suggest to the 7 court, that that's the end of the inquiry with 8 regard to Ted Bernstein. 9 THE COURT: Well, it's not the end, it's a 10 part of it. But it's not. I mean, there is no 11 one single thing until I rule that means more than 12 anything else. So I wasn't sure where you were 13 getting at, that's kind of a little bit -- a 14 little bit out of turn because, I mean, it's 15 obvious what I'm trying to suggest. It sounds 16 like it's helpful to this estate, given the amount 17 of litigation -- litigation costs time, effort, 18 animosity, et cetera -- to see if there's areas 19 that we can reach agreements to the benefit of the 20 estate. 21 MR. ELIOT BERNSTEIN: Your Honor -- 22 THE COURT: Hold on. I'm not, you know -- I 23 mean, you all know better whether something can 24 happen to get someone's pocket picked. I don't 25 want that to happen. 00056 1 So -- I'll tell you what, I'm going to 2 take a five-minute recess, you'll talk to each 3 other. It's a little easier to talk outside my 4 presence. 5 MR. ELIOT BERNSTEIN: Your Honor -- 6 THE COURT: Well, no, we're in recess and you 7 all can talk. Go ahead. 8 (Brief recess) 9 THE COURT: Okay. Keep your seats. Thanks. 10 Okay. 11 MR. ROSE: Can I just -- may be out of 12 order -- can I just say it's not overly -- it 13 won't take long -- but this is our position. 14 THE COURT: Okay. 15 MR. ROSE: We believe -- I believe that in 16 this case with unique circumstances, and we've 17 just lived six months of having a curator who 18 is -- will be in the same role as another neutral. 19 And through the curatorship and the bombarding of 20 the curator by Eliot, we've run up a lot of money 21 in fees. We do not have any ill will toward 22 Eliot. I know when a judge sees people sniping, 23 you think it's mutual. We don't have any ill will 24 towards Eliot. He's done a lot of things that I 25 think are wrong and are meanspirited and harmful, 00057 1 but all we want to do in this is get the case to 2 the finish line. 3 THE COURT: Okay. So, stop. Because here's 4 what I want to know. Simple. You folks have an 5 agreement? If not, I'm going to proceed and let 6 you litigate this. Maybe you'll spend all the 7 money in the estate over this, and maybe you'll be 8 accountable to the beneficiaries once that 9 happens. So do you have an agreement or not? 10 MR. ROSE: And on that point -- 11 THE COURT: You either have an agreement or 12 not. Otherwise, we're going to litigate this 13 entire issue. And I'm going to keep track of how 14 much the fees that are spent on this issue. 15 MR. ROSE: Well -- 16 THE COURT: So you either have an agreement 17 or you don't. It's up to you. I'm going to rule 18 on it based on the law and facts. 19 MR. ROSE: But my understanding is when we 20 were here, I don't think it's going to be 21 litigated much more. 22 THE COURT: Maybe, yes. If not today, it's 23 next week. If not next week, the next day. We've 24 got to get passed this point. Okay. This is not 25 an exact science and -- but it's a matter of using 00058 1 good judgment. 2 MR. ROSE: I understand. I'm not -- 3 THE COURT: And here's the point, candidly. 4 Ted could possibly do a good job as a PR, but he's 5 a hot blood. Okay. The moment Ted serves Eliot 6 and/or others are going to respond a certain way. 7 Okay. So we know that. And so, you know, if you 8 just think of that alone, which obviously I see, 9 one thing you think about is, for the small 10 estate, the simple estate, to get this thing over 11 with, is to put someone who is neutral, and I can 12 deal with the issue of costs. And I can deal with 13 the issue of Eliot, because I'm aware of what that 14 is, and in a way that benefits the estate. 15 Because I can put some control over that. I mean, 16 that's why I started this hearing differently than 17 I allowed perhaps the other UMCs, which I think 18 started to get a little uncomfortable for 19 everybody. I mean, our days of free-for-all are 20 over with. Okay. I'm going to be controlling the 21 UMCs. I'm going to be controlling the pleadings. 22 So -- and I agree with you, you don't want there 23 to be a, what you call, a neutral PR that has to 24 wind up spending a lot of money. But if Ted is 25 PR, Eliot's going to still file stuff until 00059 1 someone stops him from doing that. And, you know, 2 he's going to -- Ted is going to bill as a PR, 3 perhaps, and his lawyers have a right to bill, but 4 this is really doable. Okay. 5 MR. PANKAUSKI: May I? 6 THE COURT: Yes. 7 MR. ROSE: Just have 30 seconds? 8 THE COURT: Sure. 9 (Off the record) 10 MR. ROSE: Okay. We would accept either 11 Mr. Mopsick or Mr. O'Connell. We think you should 12 cap their fees -- we have a cap with Mr. Brown -- 13 and we exceeded the cap regularly. You know, I 14 think there should be a cap. And if he needs 15 additional things to be done, come forward. There 16 are some basic estate administration things that 17 probably need to be done as well, which certainly 18 someone should get paid for, or hire an 19 accountant, if there is things that need to be 20 done. 21 THE COURT: Okay. All right. So let's try 22 to make some progress. Only because of the two 23 people -- Mr. O'Connell is here. So 24 Mr. O'Connell, come up. 25 MR. O'CONNELL: Yes, sir. 00060 1 THE COURT: Do you know everybody who's in 2 play here? 3 MR. O'CONNELL: Not everyone, Your Honor. A 4 number of people, yes. 5 THE COURT: So, you know Eliot Bernstein? 6 MR. O'CONNELL: I don't. 7 MR. ELIOT BERNSTEIN: We just shook hands. 8 THE COURT: Okay. All right. So because I 9 think everyone knows Mr. O'Connell, perhaps other 10 than Eliot -- is that true? 11 MR. PANKAUSKI: Yes, Your Honor. 12 MR. ROSE: Yes, sir. 13 THE COURT: You know him? 14 MR. FEAMAN: Yes. 15 THE COURT: All right. All right. So Eliot, 16 he's like Mr. Brown -- who disappeared. 17 MR. BROWN: I'm right here. 18 THE COURT: Sorry. I mean, he's at the top 19 of the list of qualified people. But, you know, 20 if you're willing to do this, that's appreciated, 21 and I think the parties would appreciate it. But 22 you have to do it under a little bit of different 23 circumstance. Part of this is going to be 24 because -- you've probably been sitting here and 25 have heard it's a small estate with a lot of 00061 1 potential activity. And Mr. Brown, as curator, 2 has been telling me a great deal of how he is 3 getting involved, from a curator point of view in 4 the case, under times and circumstances that he's 5 uncomfortable with from a duty and responsibility 6 point of view, but just can't ignore it. And so 7 he comes to me for instructions as to whether to 8 do things or not. But every time someone comes to 9 court it costs money. So if you are willing to 10 take this assignment, and it's going to have to be 11 under some compromised financial circumstances, 12 which you'll either say yes or no to, and it's 13 totally up to you, if you're willing to do it, 14 that will enable us to move along immediately. So 15 why don't you do this. What I'd like is, so I'm 16 not directly involved, I'll again, you know, walk 17 outside for a second, to the extent that the 18 parties would like to reach out to Mr. O'Connell 19 and have him agree to two things: One, would be 20 to a financial program that would be -- you think 21 is fair -- allowing him if something extraordinary 22 comes, to make application to the court. I think 23 you can agree to that. And then I will -- if he's 24 selected, I will empower him as to what to deal 25 with any matters that are outside of what's 00062 1 appropriate in the course of the probate case that 2 could otherwise artificially raise his fees, that 3 we'll make sure it doesn't happen. You willing to 4 entertain that? 5 MR. O'CONNELL: Sure. 6 THE COURT: Okay. Go ahead and talk to them. 7 MR. ELIOT BERNSTEIN: What are we doing? 8 THE COURT: You're going to talk to him about 9 how little to pay him. 10 MR. ROSE: May I ask one question, Your 11 Honor? 12 THE COURT: Yes. 13 MR. ROSE: After we get through this, there 14 are still two other matters. 15 THE COURT: We're going to keep on going. 16 MR. ROSE: Okay. That's what I wanted to 17 know. Thank you, sir. 18 (Brief recess) 19 MR. ROSE: I think the parties are in 20 agreement for Mr. O'Connell to be the -- appointed 21 the PR. He's willing to accept the job. And 22 there was some discussion about his fee 23 arrangement, and I think there's talk about a 24 blended rate that would not exceed maybe 350 an 25 hour, but realizing that his time might be more, 00063 1 his legal assistants might be less, but the 2 blended rate wouldn't exceed 350 an hour. I 3 don't -- I wouldn't envision he would be billing 4 paralegals at 350, just the average blended rate 5 would not exceed 350. 6 THE COURT: Well, usually what I would do 7 is -- and Mr. O'Connell knows -- I allow him a 8 lawyer fee of 350, or less, depending upon who the 9 individuals are, and a paralegal rate of up to 10 125. That's standard, correct? 11 MR. O'CONNELL: Right, that's standard, Your 12 Honor. 13 THE COURT: All right. So you don't need a 14 blended. That would be the rate. 15 MR. ROSE: We have no objection -- 16 THE COURT: I just kind of anticipate that -- 17 I mean, the way their office works, because I see 18 it because he's, you know, he's frequently here. 19 The paralegal at the 125 does a good deal of the 20 administrative work, saves the money of the lawyer 21 rate, and only if there is something that, you 22 know, he needs to do, is it at the lawyer rate. 23 MR. O'CONNELL: That's correct. 24 THE COURT: That's the way they work it. So 25 it's a little bit of an advantage over having a 00064 1 lawyer/curator who only bills at a lawyer rate, 2 because administrative work is done at the 3 paralegal rate, and he has skilled paralegals. 4 MR. ROSE: We agree. And we appreciate Your 5 Honor looking in with Mr. Brown; I understand 6 we've at least learned a little bit, and, 7 hopefully, we won't run into the same problems. 8 THE COURT: All right. So everyone agree? 9 MR. ELIOT BERNSTEIN: Yes, sir. 10 MR. FEAMAN: Yes, Your Honor. 11 MR. MORRISSEY: Yes. 12 THE COURT: Okay. All right. Okay. 13 Appointed. No bond required. Letters shall 14 issue. 15 All right. And, you know, what I'd like, 16 obviously, is some orderly fashion, you folks 17 don't bombard him, but, you know, give him an 18 idea of what he has to do next. 19 Okay. So -- all right. The next two 20 things that I had for this afternoon that we 21 can hear would be to deal with the request to 22 remove Ted as successor trustee -- or 23 trustee -- of the Simon Bernstein. 24 So everyone thank Mr. Brown, because I do, 25 especially for his services. 00065 1 MR. BROWN: Well, Judge, actually I'm going 2 to go ahead and file an accounting. 3 THE COURT: Sure. You need to wrap it up. 4 MR. BROWN: I will do that. But I had one 5 matter and then I was going to ask you to be 6 excused today. 7 THE COURT: Sure. 8 MR. BROWN: You recall that I had asked 9 that -- to liquidate the IRA? 10 THE COURT: Yes. 11 MR. BROWN: There was some discussion at the 12 hearing that the money should not leave the 13 account, which is 5007 at JP Morgan. JP Morgan, 14 who's -- I won't say that thought. JP Morgan, 15 when I said can you please start liquidating the 16 account, said, okay, but we have to move all of 17 assets over to a new account called 8004. They 18 told me that after the -- 19 THE COURT: Just a new number. 20 MR. BROWN: A new number. Actually, it's a 21 new account. So they started moving the money to 22 the new account. So to try to strictly comply 23 with the order, I said, well, let's just amend the 24 order to all the parties and -- 25 THE COURT: The answer is yes. 00066 1 MR. BROWN: I sent you a letter -- 2 THE COURT: I didn't get it, but the answer 3 is yes. You want an order entered on that? 4 MR. BROWN: I have -- I have the orders. 5 THE COURT: It's just a different account 6 number. 7 MR. ELIOT BERNSTEIN: But we don't have any 8 of the account information. 9 THE COURT: He's going to file an accounting. 10 MR. ELIOT BERNSTEIN: No, but JP Morgan was 11 supposed to have already provided us information, 12 and they're now, all of a sudden -- this could get 13 lost, there's evidence. 14 THE COURT: Now, you have -- Mr. Brown's 15 going to do an accounting. 16 MR. BROWN: I have the account statements. 17 THE COURT: He can have those, yeah. I mean, 18 Eliot, it's not -- let's not go there if we don't 19 have to. 20 MR. ELIOT BERNSTEIN: Okay. 21 MR. BROWN: This is the amended order. This 22 is the -- this is the order that I circulated. 23 MR. ROSE: Are you going to actually 24 liquidate the securities like -- give the order to 25 liquidate the securities? 00067 1 THE COURT: They're already doing it. 2 MR. BROWN: Yeah. 3 MR. ROSE: Rather than wait for 4 Mr. O'Connell -- 5 THE COURT: No, we're not missing a beat. 6 MR. ROSE: Thank you, sir. This was delayed 7 a little bit because of the order. 8 THE COURT: Okay. Thanks, Mr. Brown. 9 MR. BROWN: Thank you very much. May I be 10 excused for today? 11 THE COURT: Yes. 12 MR. ROSE: Thanks, Mr. Brown. 13 THE COURT: He still has a little work to do, 14 he's not retiring. He's not going to Cleveland. 15 Okay. So thanks, Mr. Brown. Of the two 16 remaining matters, one dealt with the removal 17 of Ted as trustee and the other one dealt with 18 the inadvertent disclosure issue. Is there -- 19 let me get time frames to see which -- 20 MR. ELIOT BERNSTEIN: Can I ask to postpone 21 those for a minute? I've -- I've engaged counsel 22 that I've paid to review the files. One is Fowler 23 White & Boggs. I don't know if you know who they 24 are here in Florida. They're a very respectful, 25 old line, Civil War type group of guys. And 00068 1 Buchanan Ingersoll out of Pittsburgh. Both 2 outstanding reputations. They need some time to 3 get their hands around things -- I think now that 4 we've cleared to a PR, a little break here 5 wouldn't hurt any of us, and, you know, give 6 them -- 7 THE COURT: When you say you've hired them -- 8 MR. ELIOT BERNSTEIN: I engaged them to 9 review the files. 10 THE COURT: For the purpose of potentially 11 making an appearance? 12 MR. ELIOT BERNSTEIN: Yes, sir. And their 13 names -- they told me I could give you his name, 14 you can call him. Robert Olson is the shareholder 15 at Fowler White & Boggs; is the main guy on it. 16 THE COURT: Okay. 17 MR. ELIOT BERNSTEIN: You'll be much happier 18 with me represented. 19 THE COURT: On the inadvertent disclosure 20 issue, who is the purported aggrieved party? 21 MR. PANKAUSKI: Mr. Ted Bernstein and 22 Mr. Rose. 23 THE COURT: Mr. Rose. 24 MR. PANKAUSKI: Speaking about the e-mail, 25 Your Honor? 00069 1 THE COURT: Yeah. 2 MR. PANKAUSKI: Yes, that was an e-mail 3 between Mr. Rose and his client, Ted Bernstein. 4 THE COURT: Okay. But -- 5 MR. ELIOT BERNSTEIN: That's untrue, Your 6 Honor. 7 THE COURT: Hold on. Stop. Remember the 8 rules, Eliot? You're not doing that any more. 9 MR. ELIOT BERNSTEIN: Sorry. 10 THE COURT: Okay. Okay. But -- so whatever 11 happened, happened, correct -- 12 MR. PANKAUSKI: Yes, Your Honor. 13 THE COURT: -- already? And what is the 14 issue that I would be asked to decide? 15 MR. ROSE: Okay. Briefly, Your Honor. We 16 had inadvertent e-mail, requests to recall it, and 17 then an objection by Mr. Bernstein. So under Rule 18 1.2850 this triggered a need for you to decide 19 whether the e-mail was, in fact, privileged. The 20 only urgency are two-fold: One, Mr. Eliot 21 Bernstein continues to use the e-mail by 22 republishing it in various pleadings. I mean, 23 continuing -- 24 THE COURT: Give me one second. Sit down. 25 Go ahead. 00070 1 MR. ROSE: I mean, including the motions to 2 remove people and various motions -- keeps 3 republishing parts of it to all the lawyers, and, 4 you know, all the parties. So, you know, it keeps 5 getting republished and republished. That's my 6 only concern, but... 7 THE COURT: Okay. 8 MR. ROSE: That's the issue. 9 THE COURT: I got that part. That kind of 10 was my recollection. All right. And so -- 11 MR. ROSE: May I? Would you mind, sir? 12 THE COURT: Go ahead. 13 MR. ROSE: If you would enter an order -- you 14 have yet to enter an order under Rule 1.285 that 15 orders Mr. Eliot Bernstein to sequester the 16 document. But if you would enter an order and, 17 therefore, if he violated the order, he would be 18 in contempt. I would think it might make sense, 19 if he's having lawyers come in, to defer the issue 20 to when his lawyers come in because his lawyers 21 might look at the issue, decide it's not necessary 22 to have an evidentiary hearing over that issue. 23 But so long as -- the rule does require him to 24 sequester the e-mail and not use it. We have yet 25 to ask you to enter a formal order that would have 00071 1 some teeth behind it. 2 MR. ELIOT BERNSTEIN: Your Honor, can I 3 speak? 4 THE COURT: No, not yet. I'm turning pages. 5 MR. ELIOT BERNSTEIN: I'm sorry. 6 THE COURT: I'm turning pages. Let me just 7 look for the rule. 8 What's the rule number one again? 9 MR. ELIOT BERNSTEIN: 1.285. 10 THE COURT: 285. 11 MR. ELIOT BERNSTEIN: And I think 90.502 12 might apply. 13 THE COURT: No, not yet. Okay. I got it. 14 All right. So because there's been 15 assertion of privilege at a hearing, I would 16 determine, what you tell me is, Eliot Bernstein 17 challenged the assertion of privilege, correct? 18 MR. ROSE: Yes, sir. 19 THE COURT: Okay. And Eliot says I'm having 20 that issue reviewed by some lawyers, is that what 21 you -- 22 MR. ELIOT BERNSTEIN: No, I can take that 23 issue myself, I believe. 24 THE COURT: All right. So why don't we do 25 that. 00072 1 MR. ELIOT BERNSTEIN: That's fine. 2 THE COURT: Let's do that hearing and then 3 we'll deal with the other one, if we have time, or 4 defer it. 5 MR. ELIOT BERNSTEIN: Okay. 6 THE COURT: Okay. Same admonition. Rules 7 apply. Okay. 8 MR. ELIOT BERNSTEIN: Who's leading? 9 MR. FEAMAN: Your Honor, in the interests of 10 my client's money, I would request that the court 11 formally, that we do, in fact, postpone the 12 hearing on Eliot's petition, which we have joined 13 in, for removal of Ted Bernstein. 14 THE COURT: As a practical matter, given what 15 Eliot said, given what you're just saying, given 16 the time frame, I think the last thing we'll be 17 able to do today is the privilege issues. So we 18 won't have time on the other one for today. But I 19 have hearing -- next week we have hearing time, 20 true? 21 MR. PANKAUSKI: Next Wednesday. 22 THE COURT: So do we have other things 23 scheduled already for next Wednesday or was it 24 just what we didn't finish today? 25 MR. FEAMAN: Just what we didn't finish 00073 1 today. 2 THE COURT: All right. So let's talk about 3 that real quickly. If we didn't hear the removal 4 of Ted as trustee matter today, do you -- does 5 anyone want to hear that next Wednesday as opposed 6 to today? 7 MR. PANKAUSKI: Yes, Your Honor, we would 8 like to hear it next Wednesday if you don't hear 9 it today, but I think you can dispose of it today. 10 THE COURT: I can only dispose of it if I 11 start to hear it, so... 12 MR. PANKAUSKI: Understood. 13 THE COURT: I mean, we're kind of running out 14 of time and I wanted to do this privilege issue. 15 So -- all right. Well, let's -- I'll tell you 16 what. Mr. Feaman, would you -- you want to 17 just -- would you stay around -- I want to let you 18 know what we're going to do next Wednesday as soon 19 as we're done with this hearing. So just wait 20 around for a little bit. 21 MR. FEAMAN: Okay. Thanks. 22 THE COURT: You're up Eliot. 23 MR. ELIOT BERNSTEIN: Okay. I received an 24 e-mail communication. 25 THE COURT: Do you want to testify now, or 00074 1 not? 2 MR. ELIOT BERNSTEIN: What's that mean? 3 THE COURT: Give evidence. 4 MR. ELIOT BERNSTEIN: No. Can I? 5 THE COURT: Well, yeah, if you want to, I'll 6 put you under oath. 7 MR. ELIOT BERNSTEIN: Can I submit the 8 letter? 9 THE COURT: That's not evidence. You can 10 submit it, but you have to move it into evidence 11 and see if someone objects. 12 MR. ELIOT BERNSTEIN: Can I move this letter 13 into evidence? 14 THE COURT: Any objection, number one, for 15 the hearing? 16 MR. PANKAUSKI: Yes. 17 THE COURT: This is the alleged -- 18 MR. ELIOT BERNSTEIN: Privileged document. 19 THE COURT: -- privileged document. 20 MR. ROSE: Well, I think for the purposes -- 21 I think he can mark for ID, but, you know, it 22 should not go into the court file if it's 23 privileged if ultimately -- 24 THE COURT: Okay. That's the way to do it. 25 ID Number 1. Let me have it. Okay. So we need a 00075 1 stamp here, because I've never seen the document, 2 so. All right. So for ID purposes, I've been 3 given an e-mail from Ted to Eliot. That's the 4 e-mail, correct, Mr. Rose? 5 MR. ROSE: Yes, Your Honor. If you look -- 6 it's sent to Eliot Bernstein, but if you look at 7 the first dear, the first word of the e-mail is 8 Dear Alan. 9 THE COURT: Doesn't say Dear Alan, says Alan. 10 MR. ROSE: Okay. 11 THE COURT: So if we can, by way of opening 12 then, this document, which is many pages, but most 13 of them have, you know, certificate of 14 service-type people. It's one -- the essence of 15 the transmission is one page, correct? 16 MR. ROSE: Can I see the actual Exhibit he 17 moved in? 18 THE COURT: Yeah. 19 MR. ROSE: Yes, sir. That's correct. 20 THE COURT: It bears a date of May 22, 2014 21 at 10:52 p.m. 22 Okay. That's the one, correct? 23 MR. ELIOT BERNSTEIN: Correct, Your Honor. 24 THE COURT: And the substantive part of it is 25 one page, the first page? 00076 1 MR. ELIOT BERNSTEIN: Correct, Your Honor. 2 THE COURT: All right. So I think I was told 3 previously that Ted made an assertion that this 4 was an inadvertent disclosure. Correct, Mr. Rose? 5 MR. ROSE: Correct, sir. 6 THE COURT: Okay. All right. And that Eliot 7 was served with a copy of the notice of assertion 8 of privilege and filed a challenge. So, 9 procedurally, is that where we're at? 10 MR. ROSE: Yes, sir. 11 THE COURT: Okay. So I need to see the -- 12 did you, Mr. Rose, when you asserted privilege 13 pursuant to subsection (a), did you do so in 14 writing? 15 MR. ROSE: I did by e-mail, Your Honor. 16 THE COURT: Could I see that? And that will 17 be Number 2 for the hearing. 18 MR. ROSE: And that's what I'm trying to 19 find. 20 MR. ELIOT BERNSTEIN: For the hearing? 21 MR. ROSE: Do you have a copy of the e-mail 22 to you? 23 MR. ELIOT BERNSTEIN: I don't. I might. 24 MR. ROSE: I have a lot of papers. 25 Apologize. 00077 1 THE COURT: I'll let you look through it. 2 And then, Mr. Eliot Bernstein, do you have your -- 3 MR. ELIOT BERNSTEIN: No. 4 THE COURT: I haven't finished it. 5 MR. ELIOT BERNSTEIN: Sorry. And Alan might 6 have a copy of that, I don't know. 7 THE COURT: Okay. Do you have a writing -- a 8 writing that deals with your assertion of 9 privilege? Did you do it in writing or are you 10 going to tell it to me verbally? 11 MR. ELIOT BERNSTEIN: I objected to the 12 assertion. 13 THE COURT: Right. Right. 14 MR. ELIOT BERNSTEIN: I did and I sent it to 15 Mr. Rose. 16 THE COURT: Do you have a copy of your 17 challenge? 18 MR. ELIOT BERNSTEIN: I don't. 19 MR. ROSE: I would -- I would concede -- I 20 would concede he's made the challenge. He teed up 21 the issue. I cannot find my -- 22 THE COURT: All right. So then it says here 23 in the rule the grounds for the challenge may 24 include, but are not limited to, the following: 25 The materials in question are not privileged. Is 00078 1 that -- is that one thing you asserted? 2 MR. ELIOT BERNSTEIN: That's one of my 3 points. 4 THE COURT: Next, the disclosing party lacks 5 standing to assert the privilege. Is that a 6 ground? 7 MR. ELIOT BERNSTEIN: What's that? One more 8 time, the opposing party. 9 THE COURT: They're the one asserting 10 privilege. The question is, do they have standing 11 to do so. 12 MR. ELIOT BERNSTEIN: Under what capacity did 13 they assert privilege? I have to ask him. 14 THE COURT: This is Ted's communication that 15 he said was inadvertently disclosed to you and 16 should have gone to Alan. Alan is his lawyer. 17 Okay. And it's agreed that they timely filed 18 notice. 19 Okay. All right. So your first piece of 20 evidence, Eliot, that either the materials in 21 question are not privileged. 22 MR. ELIOT BERNSTEIN: Right. 23 THE COURT: Or deals with the circumstances 24 surrounding the production or disclosure of the 25 materials, so I can make a determination whether 00079 1 there's been a waiver of an assertion that the 2 material is protected by privilege. 3 Okay. You're up. Do you want to testify? 4 Raise your right hand. 5 THEREUPON, 6 ELIOT BERNSTEIN, 7 a witness herein being of lawful age, and being first 8 duly sworn in the above cause, testified under oath 9 as follows: 10 MR. ELIOT BERNSTEIN: Yes, sir. 11 THE COURT: Go ahead. 12 DIRECT EXAMINATION 13 MR. ELIOT BERNSTEIN: Okay. I testified that 14 I got this e-mail directly from my brother. There 15 were no lawyers copied on it, which was told to 16 you twice now, with the prior hearing and today, 17 that the communication was sent from Ted to his 18 attorney, which it wasn't. 19 THE COURT: Okay. So hold on. 20 MR. ELIOT BERNSTEIN: Yes, sir. 21 THE COURT: Make sure the record is clear. 22 In Exhibit Number 1 for ID only, the written data 23 is one page, but it says notice of service of 24 court documents. Does that mean that the e-mail 25 was sent -- Mr. Rose -- says it's sent by Ted. 00080 1 That's not disputed, correct? 2 MR. ROSE: Yes, sir, Mr. Ted Bernstein sent 3 it. 4 THE COURT: When he sent it, what's on Page 5 2, did the e-mail also have that? 6 MR. ELIOT BERNSTEIN: No, here's what 7 happened. It looks like -- 8 THE COURT: This is your document. 9 MR. ELIOT BERNSTEIN: No, it's their 10 document. 11 THE COURT: You moved this into evidence. 12 MR. ELIOT BERNSTEIN: It's Ted's e-mail to 13 me. So Page 2 of Ted's e-mail is this service 14 list. And the reason there is a service list 15 there, was it appears that Ted was responding to 16 my objection to the accounting and replied to me 17 that this whole thing, you know, Dear Alan letter. 18 THE COURT: Let me back up. This is -- 19 because this is one document. On Page 2 of 20 Exhibit 1 for ID only, it says May 22, 2014 at 21 5:01 p.m., Eliot Bernstein wrote, and then it has 22 notice of service of court documents. 23 MR. ELIOT BERNSTEIN: I served my objections 24 to the accounting. 25 THE COURT: Okay. 00081 1 MR. ELIOT BERNSTEIN: Ted was the recipient. 2 THE COURT: Okay. You sent that -- among the 3 people that you sent that to, all the people on 4 this list, correct? 5 MR. ELIOT BERNSTEIN: Yeah. 6 THE COURT: All right. Why is that attached 7 to what Ted wrote to you? 8 MR. ELIOT BERNSTEIN: It's a reply. He 9 replied to my service. 10 THE COURT: Okay. I follow you now. 11 MR. ELIOT BERNSTEIN: Okay, sir. 12 THE COURT: Okay. I got it. 13 MR. ELIOT BERNSTEIN: Okay. Thank you. 14 THE COURT: Go ahead. 15 MR. ELIOT BERNSTEIN: Okay. So, you know, I 16 got a letter from my brother directly to me, no 17 other people copied on it, no lawyers copied on 18 it. Nothing. I get a thousand e-mails, as I've 19 told you, that are people's letters to people, 20 start out with Alan, Bob, Dave, or whatever you 21 want. There is no privileged language on it like 22 a lawyer/client, attorney privilege, don't read 23 this if you are not the guy. So I read the 24 letter. And it's got threatening language to me 25 and my family and other people. It threatens the 00082 1 use of force and aggression. 2 THE COURT: You're outside the scope of the 3 rule. 4 We're dealing with the issues 5 of privilege. 6 MR. ELIOT BERNSTEIN: Can you help me there? 7 THE COURT: Dealing with the issues of 8 privilege. 9 MR. ELIOT BERNSTEIN: That's one of the most 10 important rules that I don't know if you touched 11 on, that the Bar rules say that privilege can be 12 broken when there is actual threats of force. I 13 think it's 4.41 -- 14 THE COURT: Hold on. Let me see -- try to 15 make common sense out of this. This seems pretty 16 easy to me. Tell me if this is the issue. If 17 this e-mail was intended to go from Ted to Eliot, 18 do you assert that as privileged? 19 MR. ROSE: If the e-mail was intended by Ted 20 to go to Eliot, then we would agree that it would 21 be an e-mail from Ted to Eliot. The reason -- 22 THE COURT: No. No. Stop. Stop. I'm 23 taking control. If this e-mail was inadvertently 24 sent to Ted and was intended to be sent to Alan 25 Rose, Ted's lawyer, would you agree that that 00083 1 would be privileged? 2 MR. ELIOT BERNSTEIN: No. 3 THE COURT: And why not? 4 MR. ELIOT BERNSTEIN: Well, it loses its 5 privilege when he sends it to me. 6 THE COURT: No. No. Remember I said if it 7 was inadvertently sent to you and was intended to 8 go -- 9 MR. ELIOT BERNSTEIN: Well, that depends on 10 his intent. 11 THE COURT: Okay. All right. 12 MR. ELIOT BERNSTEIN: And his intent is 13 questionable. 14 THE COURT: Okay. All right. There is no 15 factual dispute that this was actually sent to 16 Eliot, true? 17 MR. ROSE: True. 18 THE COURT: And it says that right on the 19 document, to Eliot. All right. So let me look at 20 the way this rule is worded. Okay. So Eliot, 21 you've got to show as part of your challenge where 22 this is -- why this is not privileged. And one 23 reason you say is because it was sent to you. 24 MR. ELIOT BERNSTEIN: Well, under 95.02 25 [sic]. 00084 1 THE COURT: 95 what? What's that mean? 2 MR. ELIOT BERNSTEIN: 90 point -- Florida 3 statutes, I believe. 4 THE COURT: Florida statutes. 5 MR. ELIOT BERNSTEIN: 90.502. 6 THE COURT: Okay. Hold on. 7 MR. ELIOT BERNSTEIN: Only -- 8 THE COURT: Hold on. If you cite something, 9 I got to get to it. 10 MR. ELIOT BERNSTEIN: I was going to give you 11 the subset. 12 THE COURT: Okay. Lawyer/client privilege. 13 MR. ELIOT BERNSTEIN: 4 (a) and (c) 14 particularly. 15 THE COURT: All right. 16 MR. ELIOT BERNSTEIN: I'm not sure if these 17 are up to date. 18 THE COURT: I read that and see -- all right. 19 But -- all right. I think that the little bit 20 what you're getting at is a little bit of a sub 21 issue because -- or maybe not. Okay. All right. 22 So you are contending that the materials are 23 not -- are not privileged, in essence, even if 24 intended to go to Alan because they violate or -- 25 because of 90.502, Subsection (4), that says 00085 1 there's no lawyer/client privilege under the 2 section when, and whatever subsection (a) or (c) 3 says. 4 MR. ELIOT BERNSTEIN: If it were determined 5 somehow it was privileged, yeah, those would apply 6 then. 7 THE COURT: All right. Go ahead. Keep on 8 going. 9 MR. ELIOT BERNSTEIN: I think I'm done. 10 THE COURT: Okay. All right. Any questions? 11 MR. ELIOT BERNSTEIN: Can I call witnesses? 12 THE COURT: Yeah, but they still have a right 13 to question you first. Then when you're done you 14 can call witnesses. 15 MR. ROSE: Can I cross-examine him? 16 THE COURT: Sure. Eliot have a seat up here. 17 MR. ELIOT BERNSTEIN: Sure. 18 CROSS-EXAMINATION 19 BY MR. ROSE 20 Q I'm going to hand him an exhibit, I'll mark it 21 as Exhibit 2. 22 THE COURT: No, it will be your Number 1. 23 Respondent's Number 1. 24 MR. ROSE: Respondent's 1. May I approach? 25 THE COURT: Yeah. 00086 1 BY MR. ROSE 2 Q I've handed you Respondent's 1, which is an 3 e-mail from Alan Rose to I view it at I view it dot pb. 4 Is that your e-mail address? 5 A Yes, it is. 6 Q Did you receive this e-mail on or about 7 Thursday, May 22nd at 11:07 p.m.? 8 A It looks like that according to this copy. 9 THE COURT: Moving it into evidence? 10 MR. ROSE: Move it into evidence. 11 THE COURT: Number 1 for the respondent. 12 BY MR. ROSE 13 Q And that's less than an hour after you received 14 the e-mail from Ted, is that correct? 15 A Well, according to the e-mail I've submitted 16 into evidence, Ted sent me his e-mail at 10:52 and you 17 were right on it -- let's see -- 8 minutes plus 7 is 15 18 minutes -- 19 THE COURT: So, Eliot, did you hear the 20 question, it was so simple. 21 THE WITNESS: No, I was just doing the math. 22 THE COURT: He said, is it within an hour? 23 THE WITNESS: Oh, within an hour, was that 24 the question? 25 BY MR. ROSE 00087 1 Q Yes, was it within an hour? 2 A Yeah. 3 Q Okay. And then did you agree -- we had a 4 hearing that day? 5 A I did not receive this e-mail or 6 communicate -- 7 THE COURT: Doesn't mean when it was opened, 8 it meant when it was transmitted. 9 THE WITNESS: Okay. Great. 10 BY MR. ROSE 11 Q We had a hearing the next morning, and there is 12 a transcript of the hearing. Did you agree at the 13 hearing to not use the e-mail until the court was able 14 to -- strike that. Did you agree at the hearing not to 15 use the e-mail at all? 16 A I did. 17 Q And then you wrote me an e-mail that said that 18 you got back from the hearing and you would delete and 19 destroy the e-mail in accordance with the law? 20 A I said I would follow the law. 21 Q Okay. 22 A And then I sent you notice that I was 23 objecting. 24 MR. ROSE: Exhibit 2, Respondent's Exhibit 2, 25 Your Honor. 00088 1 THE COURT: Okay. 2 BY MR. ROSE 3 Q Is this an e-mail you sent to me, sir? 4 A I want to clarify. I did actually send to 5 everybody I sent it to a letter stating what you had 6 claimed privileged, and asking them to follow the law. 7 And do as they see fit. I provided them both sections 8 of the law that I could see that were applicable. 9 THE COURT: Okay. Eliot, next question. 10 THE WITNESS: Okay. 11 BY MR. ROSE 12 Q Is this an e-mail you sent to me? 13 A Yes. 14 THE COURT: Number 2 in evidence? 15 MR. ROSE: Number 2 in evidence. Thank you. 16 BY MR. ROSE 17 Q And was one of the people you sent the 18 privileged e-mail to Crystal Cox? 19 A Yes, it is. 20 Q And did she publish the e-mail on the Internet? 21 A I believe so. 22 Q And have you since republished what she's 23 published in papers that you filed with Judge Colin? 24 A I've taken excerpts from her web sites and 25 published them in papers to Judge Colin. 00089 1 Q And did those include parts of the privileged 2 e-mail? 3 A They included parts of the privileged e-mail. 4 They included parts of her web blog. Blog. 5 THE COURT: He answered it. I understand. 6 MR. ROSE: Okay. I have nothing further. 7 Thank you. 8 THE COURT: Okay. All right. Your next 9 witness, Eliot. 10 MR. ELIOT BERNSTEIN: Alan Rose. 11 THE COURT: Okay. Mr. Rose, switch places. 12 THEREUPON, 13 ALAN B. ROSE, ESQ., 14 a witness herein being of lawful age, and being first 15 duly sworn in the above cause, testified under oath 16 as follows: 17 DIRECT EXAMINATION 18 BY MR. ELIOT BERNSTEIN 19 Q Mr. Rose, you submitted into evidence your 20 letter to me sent at 11:07, 15 minutes after Ted's letter 21 at 11:07 p.m. Are you aware that I talked with you and 22 told you that I did not see this letter till minutes -- I 23 didn't even know this letter existed at the time of the 24 hearing that was had the day of court? 25 A You told me that, yes. 00090 1 Q Okay. And I told you I would go back and do 2 what it was according to law, correct? 3 A You told me outside of the courtroom that you 4 had already sent it to 2,000 people, and you would not 5 retract it. Then we had a hearing. And what happened 6 at the hearing is on the transcript. 7 Q Okay. And so I did inform you that I had sent 8 it to several thousand people? 9 A Yes, sir. 10 Q Okay. Hold on one second. Are you aware that 11 the e-mail was sent from Ted to Eliot only? 12 A Yes, I received an e-mail -- 13 THE COURT: Okay. Yes. 14 THE WITNESS: Yes. 15 BY MR. ELIOT BERNSTEIN 16 Q Did you make prior statements to the court that 17 the e-mail was sent to Ted -- or from Ted to Eliot, plus 18 other attorneys? 19 A No, I think I said there was an e-mail that 20 came from Eliot to Ted that had a pleading in it. Ted, 21 while on an airplane, typed a reply -- he didn't type a 22 reply. He typed something to me that accidently went 23 as a reply to you. And then he told me about it and 24 this is where we are. 25 Q Okay. And from your understanding of the law, 00091 1 I have followed the rules of privilege regarding 2 notifying you that I was challenging this? 3 A Absolutely not. You've not followed the 4 rules. 5 Q I haven't notified you that I was objecting to 6 this because I thought you had admitted that to the court 7 already. 8 A You notified me that you were going to 9 challenge our assertion to privilege, but you didn't 10 comply with the rule. 11 Q Okay. That was the part -- you can make that 12 claim later. But once again, just to get it clear for 13 the record. 14 THE COURT: I got it. 15 MR. ELIOT BERNSTEIN: You do. Okay. Great. 16 BY MR. ELIOT BERNSTEIN 17 Q Okay. Is it typical that you're working at 18 11:07? 19 A It's very typical. 20 Q Okay. 21 A Unfortunately. 22 MR. ELIOT BERNSTEIN: That's all the 23 questions I have. 24 MR. ROSE: No redirect -- or no recross. 25 THE COURT: Next witness, Eliot. 00092 1 MR. ELIOT BERNSTEIN: Ted Bernstein. 2 THE COURT: All right, Ted. 3 THEREUPON, 4 TED BERNSTEIN, 5 a witness herein being of lawful age, and being first 6 duly sworn in the above cause, testified under oath 7 as follows: 8 DIRECT EXAMINATION 9 BY MR. ELIOT BERNSTEIN 10 Q Ted, did you send me, Eliot, a letter on May 11 23 -- or on May 22, 2014? 12 A I believe I did. 13 Q Can you describe what the e-mail you sent 14 was -- 15 MR. ROSE: Objection, best evidence. 16 BY MR. ELIOT BERNSTEIN 17 Q -- about? 18 THE COURT: Yeah, best evidence is the 19 e-mail. You can ask him questions about it, but 20 you are asking him to describe it. 21 MR. ELIOT BERNSTEIN: Okay. 22 BY MR. ELIOT BERNSTEIN 23 Q Did you use the words force and aggression 24 to -- to invoke a strategy of force and aggression 25 against Eliot Bernstein? 00093 1 A I don't know. Can I see the e-mail, please? 2 THE COURT: That's fair. 3 MR. ELIOT BERNSTEIN: Sure. 4 THE COURT: He's showing him a document. 5 MR. ROSE: I was just cautioning him not to 6 publish the -- 7 THE COURT: It's still ID only. Go ahead. 8 So you've shown him, Eliot, the document. What's 9 your question? 10 BY MR. ELIOT BERNSTEIN 11 Q Did you say you were -- that you suggested 12 using force and aggression with Eliot? 13 MR. ROSE: Object to the form. 14 THE COURT: Overruled. 15 THE WITNESS: No. 16 BY MR. ELIOT BERNSTEIN 17 Q Can you read that section into -- 18 MR. ROSE: Objection to him reading it. 19 THE COURT: Well -- 20 MR. ROSE: He can read it to himself. 21 THE COURT: Yeah, you can read it to yourself 22 and then ask a question. But you also need to 23 tell me what part you're reading. 24 MR. ELIOT BERNSTEIN: Him being aggressive 25 and forceful. 00094 1 THE COURT: Where -- what paragraph should I 2 read? 3 MR. ELIOT BERNSTEIN: Like the fifth line -- 4 the first one, two, three, four -- 5 THE COURT: Okay. Let me read it. 6 MR. ELIOT BERNSTEIN: -- sixth line where it 7 starts -- 8 THE COURT: Give me a chance. Ted and I will 9 read at the same time. 10 Okay. I read it. Go ahead. 11 THE WITNESS: I've read it too. 12 BY MR. ELIOT BERNSTEIN 13 Q Does that refresh your memory? Did you use -- 14 if you used the words -- 15 A My answer is still no. 16 Q -- to be forceful and aggressive with Eliot? 17 A You asked if I used the words force and 18 aggression. 19 Q Okay. I'll ask it again. Did you use the 20 words being aggressive and forceful? 21 A Yes, I did. 22 Q Okay. Are you aware of the qualifications of a 23 fiduciary? 24 MR. ROSE: Objection, relevance. 25 THE COURT: What's the relevancy to this 00095 1 issue? 2 MR. ELIOT BERNSTEIN: I was going to ask him 3 if he understood that being aggressive and 4 forceful is contrary to other fiduciary's 5 responsibilities to -- 6 THE COURT: Okay. Sustained. 7 MR. ELIOT BERNSTEIN: That's all I have. 8 THE COURT: Any questions? 9 MR. ROSE: Just briefly. 10 THE COURT: Hold on, Ted. 11 MR. ROSE: Just like to move into evidence -- 12 CROSS-EXAMINATION 13 BY MR. ROSE 14 Q Did you send me an e-mail after you realized 15 that you had sent the e-mail to Eliot? 16 A Yes. 17 THE COURT: That will be Number 3. 18 MR. ROSE: I don't think it waives the 19 privilege just to have -- 20 THE COURT: No, this is a privileged hearing, 21 so... 22 MR. ROSE: This is Number 3. 23 THE COURT: You can show it to him. 24 MR. ELIOT BERNSTEIN: This is a privileged 25 letter we just admitted? 00096 1 MR. ROSE: This is my -- the e-mail from Ted 2 to me. This part is different. You've seen 3 everything else. 4 MR. ELIOT BERNSTEIN: Okay. 5 BY MR. ROSE 6 Q This is Exhibit 3. Do you recognize this as an 7 e-mail you sent to me? 8 A Yes. 9 Q What is -- I move this in evidence. 10 THE COURT: Number 3. 11 BY MR. ROSE 12 Q It says sent to Eliot by mistake. Is that what 13 you wrote to me? 14 A Yes. 15 THE COURT: Let me see it. 16 MR. ROSE: In evidence. I'll give it to you, 17 Your Honor. 18 BY MR. ROSE 19 Q Could you just, very briefly, describe the 20 circumstances for how it came -- you sent the e-mail by 21 mistake? 22 A Yeah, I intended to send you an e-mail when I 23 was flying back home from a trip, and I was using 24 software I was unfamiliar with actually, and instead of 25 hitting opening up an e-mail to you, I hit forward by 00097 1 mistake -- reply by mistake -- and it went to Eliot in 2 reply rather than forwarding to you. 3 Q How long after you discovered that did you send 4 me the e-mail? 5 A I did that immediately. Right away. As soon 6 as I got off the plane. 7 Q Was the e-mail intended solely for me to 8 discuss legal strategy? 9 A Yes. 10 Q Do you have any desire to harm your brother or 11 hurt him? 12 A No, I don't. 13 MR. ROSE: Okay. Nothing further, Your 14 Honor. 15 THE COURT: Okay. 16 MR. ELIOT BERNSTEIN: Can I? 17 THE COURT: Yes, redirect. 18 MR. ELIOT BERNSTEIN: Redirect. 19 REDIRECT EXAMINATION 20 BY MR. ELIOT BERNSTEIN 21 Q Ted, in the letter, did you say if John does 22 not want to tangle with Eliot, remove John immediately? 23 MR. ROSE: Objection, Your Honor. 24 THE COURT: Hold on. So he's just reading 25 something of it, now you have to ask the question. 00098 1 BY MR. ELIOT BERNSTEIN 2 Q Do you recall writing those words? 3 MR. ROSE: Objection, attorney-client 4 privilege. 5 THE COURT: No, it's in Exhibit Number 1 6 that's ID only. Overruled. 7 THE WITNESS: Yes. 8 BY MR. ELIOT BERNSTEIN 9 Q What does the word tangle with Eliot refer to, 10 if you have no hard feelings or animosity? 11 THE COURT: Well, you didn't ask about hard 12 feelings and animosity. You asked whether he 13 wanted to hurt you. 14 BY MR. ELIOT BERNSTEIN 15 Q Well, okay, tangle. What does tangle mean? 16 A Engage. 17 Q Okay. Engage being aggressive and forceful, 18 are those the words? 19 A No. 20 Q You didn't say those words as well in that same 21 sentence, in that same paragraph, tangle with Eliot and 22 then be aggressive and forceful? 23 A I don't understand the question you are 24 asking me. 25 THE COURT: You covered that already. I got 00099 1 it. 2 MR. ELIOT BERNSTEIN: Okay. 3 BY MR. ELIOT BERNSTEIN 4 Q Can you describe what you meant when you said 5 if he -- I believe referring to John -- is not one 6 hundred percent in support of me as trustee, including 7 how I protected myself with trust assets, and will 8 continue doing so as necessary? What were you referring 9 to there? 10 MR. ROSE: Objection, Your Honor. This is 11 beyond -- 12 THE COURT: Sustained. Sustained. 13 MR. ELIOT BERNSTEIN: Don't ask him that 14 question? 15 THE COURT: Because I don't need to know his 16 interpretation of what he means. That's not 17 relevant. 18 MR. ELIOT BERNSTEIN: Okay. I'll let it go. 19 I'm done. 20 THE COURT: Okay. Have a seat. Thanks. 21 Next witness, Eliot. 22 MR. ELIOT BERNSTEIN: Nobody. Thank you. 23 THE COURT: Okay. 24 MR. ROSE: No witnesses, Your Honor. 25 THE COURT: Okay. 00100 1 MR. ELIOT BERNSTEIN: Oh, Your Honor. 2 THE COURT: Yes. 3 MR. ELIOT BERNSTEIN: Okay. One of the 4 biggest problems I have is that if you let it be 5 privileged, and then we don't go to the Florida 6 Bar rules, which say contains words like force and 7 aggression against Eliot, yada, yada, yada, that 8 we could be covering a document up here in 9 privilege that I can't -- 10 THE COURT: You're arguing now. I'm not even 11 at the argument stage. 12 Okay. I was reading. 13 MR. ELIOT BERNSTEIN: Okay. Sorry. 14 THE COURT: Okay. So all right. I'm going 15 to allow argument and I heard Eliot's argument. 16 So the essence of Eliot's argument is, if I 17 determine that the materials are privileged, the 18 rules say I'm to direct what should be done with 19 the materials and any copies as to preserve all 20 rights of the appellate review. The recipient of 21 the materials shall also give prompt notice of my 22 ruling to everyone else. That's the essence of 23 it. Eliot seems to be raising that if I do that, 24 will that have some impact on a potential 25 administrative proceeding with the Bar, is that 00101 1 what your question is? 2 MR. ELIOT BERNSTEIN: Not just that. I'd 3 like to be submitting this to criminal authorities 4 because I've already alleged extortion that 5 they're doing on me and this fits in nicely with 6 force and aggression threats. And I think we 7 would be covering up a piece of evidence that 8 could lead to me to getting harmed, especially 9 where in this case my brother was already alleging 10 my father was murdered, we haven't determined that 11 all yet. But it's starting to look like the 12 people that are involved in the fraud, and I'm a 13 little nervous, Your Honor, that I can't give this 14 to a police officer. 15 THE COURT: Let me read something in 502 for 16 a second. 17 Okay. All right. Okay. So listen to my 18 ruling. 19 The rule is pretty clear on the procedure. 20 And I think you folks have done substantially 21 what the rule requires. So we're at the point 22 where Eliot has challenged the assertion of 23 privilege. It's uncontradicted that Ted wrote 24 a letter -- an e-mail -- that actually went to 25 Eliot. That's uncontradicted. One issue is 00102 1 did Ted intend that letter to go not to Eliot 2 but to Alan, meaning Alan Rose, his lawyer. 3 That's a finding of fact that I have to make. 4 Ted said yes to that. There is no other 5 testimonial evidence as to whom that letter was 6 intended, but there is documentary evidence by 7 looking at the content of the letter. 8 So I've read the letter and it's pretty 9 easy to see that that letter was intended to go 10 to Ted's lawyer, Alan. In the beginning of the 11 letter it says, Alan. And then the discussion 12 in the letter is clearly directed to that which 13 is part of the subject of the letter, which is 14 this case, it's either the Shirley or the Simon 15 case. 16 So I make a finding of fact that this 17 letter was intended to go to Alan. 18 That finding is supported easily by the 19 fact that shortly before that letter was sent 20 from Eliot -- from Ted to Eliot -- Eliot has 21 sent a letter, or a document, by e-mail, to, 22 among others, Ted. And so Ted's version is 23 instead of sending a clean letter from him to 24 Alan, he hit forward, I think he said, and it 25 wound up -- or reply -- and it wound up getting 00103 1 sent to Eliot. That is the essence of an 2 inadvertent disclosure. 3 So I find that the matters were intended 4 to go from Ted to Alan, his lawyer. 5 Eliot then says, not withstanding, the 6 materials in question should not be deemed 7 privileged because of Florida Statute 90.502, 8 subsection 4, that basically stands for the 9 proposition that even if there is a 10 communication between a client and a lawyer, 11 the lawyer-client privilege doesn't apply when 12 the services of the lawyer are sought -- that 13 is that Ted is seeking the services of the 14 lawyer -- or obtained to enable or aid anyone 15 to commit or plan to commit what the client -- 16 that's Ted in this case -- knew -- knew was a 17 crime or fraud. 18 The other assertion is as to subsection 4 19 (c) that this is -- that a privilege shouldn't 20 apply because it's a communication relevant to 21 an issue of breach of duty by the lawyer to the 22 client. That is that it shouldn't be 23 privileged or not allowed to be privileged 24 because it deals with the subject for another 25 hearing in which Ted would say that his lawyer 00104 1 breached the duty to the client. 2 Okay. So 4 (c) clearly doesn't apply to 3 this letter. 4 So Eliot's assertion is that words within 5 this e-mail, in which Ted writes intended to 6 Alan, that if John -- and I haven't heard who 7 that is, but I assume that's John Pankauski, is 8 his other lawyer -- does not want to tangle 9 with Eliot. It then says he wants, that is 10 Ted, wants John to be aggressive and forceful, 11 if need be, with Eliot and remove him -- and 12 remove him as counsel -- if not, remove him as 13 counsel. 14 So the issue is, in reading that language, 15 either on its four corners or through parol 16 evidence, which I've heard a little bit about, 17 are those words in which Ted is soliciting Alan 18 to commit, or plan to commit, what Ted knew was 19 a crime or fraud. 20 Eliot's assertion is that when Ted seeks 21 of Alan assistance in compelling John, his 22 other lawyer, to tangle with Eliot, as written, 23 and to be aggressive and forceful, is that 24 tantamount of Ted soliciting Alan to try to get 25 Alan to, in essence, commit a crime -- which 00105 1 Eliot says is a crime -- meaning, threatening 2 him with some force or harm, or the like. 3 So the court has to make that decision in 4 the context of the letter. And so when I read 5 this letter, the question is, what do I read -- 6 because I have no other evidence about what was 7 intended, other than what I heard so far, which 8 really doesn't speak to this, is language from 9 a client to one lawyer telling that lawyer that 10 he wants to basically remove the other lawyer 11 or consider removing him if that lawyer doesn't 12 want to tangle with Eliot, and be aggressive 13 with him. Does that mean that he is requesting 14 the lawyer that he's writing to to be 15 physically assaultive or batter -- or a 16 batterer -- or is he telling his lawyer -- Ted 17 telling Alan -- that he wants John, John 18 Pankauski, to legally tangle with Eliot. And 19 legally tangle -- legally be aggressive and 20 forceful. 21 I rule it's clearly the latter. 22 I know, Eliot, that throughout many 23 appearances before me -- and I wasn't sure what 24 it was at first -- you've told me that you, 25 your family, and others, are being threatened 00106 1 with bodily harm, and I wasn't sure what the 2 nature of that threat is. But if what is in 3 the Paragraph 1 of Exhibit 1 is deemed by you 4 to fall in that category, there's nothing that 5 I can do about you reading it that way, but 6 it's clearly not the case. I mean, that's -- 7 it's not necessarily standard language -- I 8 don't know if there is such a thing as standard 9 language -- but lawyers -- clients directing 10 lawyers to toughen up, be aggressive, be 11 forceful, be willing to tangle with the 12 opponent, is common in litigation. And there 13 is nothing in this writing that seems to 14 indicate that that means physical, like beat 15 you up on the street, because that's not the 16 way this is written. It's clear that this is 17 written in the context of the case. 18 Okay. So I find that the lawyer-client 19 privilege does apply. Because this was not 20 requesting perpetration of a crime of assault 21 or battery against -- against Eliot. 22 So the next question then becomes whether 23 there remains grounds to challenge the 24 assertion of privilege. The court says no. 25 This document was as privileged as could be. 00107 1 And it's intended -- it is -- the court rules 2 that it is allowed to be treated as an 3 inadvertent disclosed document, to which 4 privilege applies pursuant to the rule. And 5 the remedy -- what's the specific remedy 6 Mr. Rose -- because the way the rule reads, if 7 I enter an order determining that the materials 8 are privileged, which I'm finding. I'm not 9 finding that the right to challenge was waived. 10 I don't think Eliot waived it. He asserted it 11 correctly. Then I can direct what shall be 12 done with the materials. So you folks are 13 telling me that things have happened already. 14 What is it that you are seeking in the order I 15 do about the materials, which I assume is this 16 one page -- hold on -- I'm asking Alan first, 17 then I'll entertain you. 18 MR. ELIOT BERNSTEIN: Okay. 19 MR. ROSE: I think you could find that he 20 violated the rule because he did not sequester it. 21 We're not here for that purpose. I would ask you 22 that -- 23 THE COURT: I didn't even hear evidence on 24 that yet, so I'm not going there yet. 25 MR. ROSE: I would ask that he delete all 00108 1 copies, notify people -- 2 THE COURT: Okay. Slow down. Hold on. Hold 3 on. One -- you got to go slow. 4 One, delete all copies in his possession 5 and control? 6 MR. ROSE: Correct. Including electronic. 7 THE COURT: Well, okay. Hold on. All right. 8 MR. ROSE: He should notify the recipients 9 and then provide us with a copy of his 10 notification to them, and request them -- 11 THE COURT: Notify recipients of what? 12 MR. ROSE: The people that he forwarded the 13 e-mail to. He should notify them of Your Honor's 14 ruling and that he's been ordered to have them 15 destroy all copies. And I would ask that he 16 provide -- or file with the court -- proof that 17 he's done that. 18 THE COURT: Okay. Go ahead. 19 MR. ROSE: And then at this point, number 20 three, I would like you to order that he's not to 21 ever use the privileged material, or republish it, 22 even if he's republishing Crystal Cox's web site, 23 where she published this -- 24 THE COURT: I got it. 25 MR. ROSE: -- at his request. 00109 1 THE COURT: Okay. 2 MR. ROSE: And then we would reserve ruling 3 on any sanctions and, hopefully, we won't have to 4 come back. 5 And then reserve on fees and sanctions for 6 his violating the order. 7 THE COURT: Where is there a fee provision? 8 MR. ROSE: We would have to file a motion and 9 that would be on the basis of his violating Rule 10 1.285. We have not filed that motion. 11 THE COURT: Where is there a -- where's the 12 rule about fees? 13 MR. ROSE: 1.375. I mean, I don't have my 14 rule book -- the rule on sanctions for discovery 15 violations and also the inherent authority of the 16 court. But we haven't raised that motion yet 17 because Your Honor just today ruled that the 18 document was privileged. 19 THE COURT: Okay. All right. Okay. So do 20 you want to be heard on the scope of the order? 21 MR. ELIOT BERNSTEIN: Yeah. 22 THE COURT: What -- go ahead. First thing is 23 that you be ordered to delete -- 24 MR. ELIOT BERNSTEIN: No, I've got all that. 25 THE COURT: Well, that's what I'm getting at. 00110 1 MR. ELIOT BERNSTEIN: Okay. I wanted to 2 oppose that. 3 THE COURT: Okay. All right. That's a 4 purported remedy that I'm being asked to do. 5 MR. ELIOT BERNSTEIN: Okay. 6 THE COURT: So what's your basis for opposing 7 that? 8 MR. ELIOT BERNSTEIN: I appreciate your 9 interpretation of that letter. The word forceful 10 is -- 11 THE COURT: Again, you can't re-question -- 12 I've already ruled. 13 MR. ELIOT BERNSTEIN: Okay. 14 THE COURT: Here's the question. There's 15 going to be an order entered. 16 MR. ELIOT BERNSTEIN: Okay. 17 THE COURT: The wording of the order, is the 18 way the rule is, is that I have to determine and 19 direct what shall be done with the materials, 20 that's this e-mail. The first thing they want is 21 an order that tells you, you, to delete this 22 e-mail from anything that's -- any document, 23 including any electronic storage place, that's in 24 your possession and control. 25 MR. ELIOT BERNSTEIN: Well, I want to give it 00111 1 to the police departments and -- 2 THE COURT: Okay. Well, if you do that -- 3 well, okay, so let's -- 4 MR. ELIOT BERNSTEIN: I mean, my life's in 5 danger. I know you didn't -- 6 THE COURT: All right. So -- 7 MR. ELIOT BERNSTEIN: -- read that. 8 THE COURT: Listen to me carefully. 9 MR. ELIOT BERNSTEIN: Okay. 10 THE COURT: I'm going to order you to delete. 11 Okay. I'm going to order you -- this is all 12 appropriate -- to notify the recipient of 13 everybody that you sent this to, of the ruling, 14 meaning you're going to send them a copy of the 15 order, and direct that they shall also delete and 16 not transmit. 17 Listen to me carefully. I order you not 18 to disseminate this document from this moment 19 forward to anybody. If you violate my order, 20 you're going to be in contempt of court. 21 Anybody, any agency, no one, because it's 22 privileged. And there is a rule that says 23 you're not allowed to do that. 24 MR. ELIOT BERNSTEIN: Do I have the right to 25 appeal this decision? 00112 1 THE COURT: Yeah. Sure. 2 MR. ELIOT BERNSTEIN: Okay. 3 THE COURT: But you have to obey my decision 4 pending the appeal. 5 MR. ELIOT BERNSTEIN: Yeah. 6 THE COURT: Sure, you can do that. All 7 right. Write it up. 8 MR. ROSE: Yes, sir. 9 THE COURT: If you want to write that up now 10 you can, or you can get my transcript and write 11 that up. 12 MR. ROSE: I would prefer to get the 13 transcript and write it up from the transcript, 14 Your Honor, for clarity. 15 THE COURT: Mr. Eliot, pending me writing the 16 written order, because electronics move quickly, 17 okay, this order is binding on you as of right 18 now. 19 MR. ELIOT BERNSTEIN: Okay. I got it. 20 THE COURT: So play by the rules. 21 MR. ELIOT BERNSTEIN: I will. 22 THE COURT: Okay. You have a right to 23 appeal. If the appellate court disagrees with me, 24 you and I will both do what they say. 25 MR. ELIOT BERNSTEIN: Okay. 00113 1 THE COURT: All right. Okay. So now for 2 Wednesday, Eliot's request is we defer on having 3 hearings on the issue of Ted as successor trustee 4 and -- so he can talk to his lawyers and see 5 whether there's some way of dealing with that 6 subject. I'll start on this side. What do you 7 say about that? 8 MR. ROSE: We're fine with that, Your Honor. 9 MR. FEAMAN: Yes, Your Honor. 10 THE COURT: Okay. All right. Okay. I'll 11 cancel the hearing in view of that. 12 Okay. Now, what I need you to do is at 13 some point, because, Eliot, the way this is 14 going to be triggered, is no one is going to 15 know what you're doing on your end. You and/or 16 your lawyers should say to the other side, you 17 know, if you hire the lawyer and they engage, 18 they can make an appearance and start to tell 19 them we're the spokespersons for you. Because 20 they either talk to you or they talk to your 21 lawyer, but to make that decision they need a 22 notice of appearance or something from the 23 lawyer. Okay. 24 MR. ELIOT BERNSTEIN: And they've explained 25 that to me. 00114 1 THE COURT: Okay. And so -- but at some 2 point you can have a status check if you need to 3 have this reset. 4 MR. ELIOT BERNSTEIN: Okay. 5 THE COURT: Meaning, if you don't agree upon 6 or work out this issue, just come back in at an 7 8:45, and if you need another hearing, I'll give 8 you another hearing date. 9 MR. ELIOT BERNSTEIN: Okay. Beautiful. 10 Thank you, sir. 11 THE COURT: Hold on. Mr. Feaman gave you -- 12 there's something else here. 13 MR. ELIOT BERNSTEIN: Is the court going to 14 retain a copy of this once I destroy it, just in 15 case we are -- 16 THE COURT: Okay. So that's a good question. 17 All right. So I have it for ID purposes. All 18 right. And Eliot is correct, to preserve the 19 integrity of this, I'm going to keep it, and I'm 20 going to put it in a sealed envelope in the court 21 file subject to being reopened by the court 22 pursuant to order. 23 MR. ELIOT BERNSTEIN: And I can tell the 24 appeal court that? 25 THE COURT: Yeah. 00115 1 MR. ELIOT BERNSTEIN: Okay. Got it. 2 THE COURT: Yeah, that's fair. Okay. And 3 then this says -- the next thing was status 4 conference to discuss other pending motions and 5 petitions, including Eliot's petition for 6 construction of trust and accounting. 7 Are we going -- 8 MR. ELIOT BERNSTEIN: Put it off. 9 THE COURT: -- to defer on that until the 10 lawyers can deal with that? 11 MR. ELIOT BERNSTEIN: Yeah. 12 MR. ROSE: Just as a heads up, we're going to 13 be filing a trust construction action in the 14 Shirley side. He's filed a trust construction on 15 this side, but that will be moot when we file our 16 action and serve it on everybody. That will be 17 its own adversary proceeding. 18 THE COURT: Okay. Fine. I'll wait to sign 19 the order. And no hearing subject to what you 20 folks tell me is going on next. Somebody will 21 send me up orders and letters on Mr. O'Connell. 22 Go ahead. 23 MR. O'CONNELL: I will, Your Honor. 24 MR. ROSE: I have two orders from the 25 first -- the motion to disqualify orders. 00116 1 THE COURT: Okay. I'll deal with those. 2 Go ahead, while I'm signing, you can 3 speak. 4 MR. FEAMAN: I have an order on Ted 5 Bernstein's petition for appointment of successor 6 personal representative. It says denied. 7 MR. ROSE: Technically withdrawn, I think. 8 THE COURT: Hold on. Let me just see. 9 Are these the same that you just gave me? 10 MR. ROSE: One is for Mr. Pankauski and one 11 is from my firm. 12 THE COURT: Let me just do this first. Hold 13 on. I'll make some copies of this. All right. 14 Let me see the order that you want. 15 MR. ROSE: We don't think it was denied, we 16 believe it was withdrawn. 17 THE COURT: It was withdrawn. Because you 18 folks comprised, so I didn't actually make a 19 ruling on the merits. Okay. So that's fair. 20 MR. FEAMAN: Okay. There is envelopes. 21 THE COURT: No, I'm going to make the copies 22 and let you -- 23 MR. FEAMAN: All right. Very good. We'll 24 save the stamp. 25 THE COURT: All right. So, folks, final 00117 1 word, you made progress when you cooperated. So 2 use that as a bell weather to try to achieve just 3 what you did. Listen to me, everyone. Eliot, you 4 too. You know, when you go outside here, you did 5 some things that I think are good for the estate. 6 Let's not only wait for you to come to court to be 7 able to do that, accomplish that on your own. 8 Okay. That's the whole idea. 9 Okay. Thanks. Court is in recess. Wait 10 for copies. 11 12 (Thereupon, the proceedings were 13 concluded at 4:22 p.m.) 14 15 16 17 18 19 20 21 22 23 24 25 00118 1 C E R T I F I C A T E 2 3 THE STATE OF FLORIDA COUNTY OF PALM BEACH. 4 5 6 I, DAVID L. MARSAA, Professional Reporter, 7 State of Florida at large, certify that I was 8 authorized to and did stenographically report the 9 foregoing proceedings and that the transcript is a 10 true and complete record of my stenographic notes. 11 Dated this 21st day of September, 2014. 12 13 14 ___________________________________ DAVID L. MARSAA, COURT REPORTER 15 16 17 18 19 20 21 22 23 24 25